Defense Against the Dark Arts of Copyright Trolling is now forthcoming in the Iowa Law Review.

Defense Against the Dark Arts of Copyright Trolling

Jake Haskell and I have accepted an offer of publication at the Iowa Law Review. Iowa published my empirical study of copyright trolling in 2015, so it seems right to place a follow up piece there as well.

Defense Against the Dark Arts of Copyright Trolling is available now on ssrn (http://ssrn.com/abstract=2933200)

This will be my 4th publication in Iowa since 2015, the others being:

  • IP Litigation in US District Courts: 1994 to 2014, 101 IOWA LAW REVIEW 1065–1112 (2016)
  • Promoting Innovation, 100 IOWA LAW REVIEW 2223–2247 (2015) (with Spencer Weber Waller)
  • Copyright Trolling, An Empirical Study, 100 IOWA LAW REVIEW 1105-1146 (2015)

Internet Safe Harbors and the Transformation of Copyright Law will be published in the Notre Dame Law Review

My article, Internet Safe Harbors and the Transformation of Copyright Law, will be published in the Notre Dame Law Review, Vol. 93, 2017, later this year.

This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software.

The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors.

DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.

Prenda is gone, but copyright trolling continues

A pattern of “brazen misconduct and relentless fraud”

Like many, I took great satisfaction from reading that John L Steele had plead guilty and acknowledged his role in the “copyright trolling” scheme that took in millions of dollars in settlements from 2010 to 2012.

For a short while, the lawyers at Prenda–Paul Duffy,John L. Steele and Paul R. Hansmeier–were the public face of copyright trolling. According to the courts, Duffy, Steele and Hansmeier engaged in “vexatious litigation designed to coerce settlement” in a pattern of “brazen misconduct and relentless fraud.” They lied to the courts, forged documents, practiced identity theft, placed their own content online so that they could sue people for stealing it, and generally behaved badly.

The scheme worked as follows: lawyers would file copyright suits alleging that some unknown person (John Doe) identified only by their IP address had infringed copyright by using BitTorrent, an online file sharing protocol. The laywers would file a case against “John Does 1- 1000” and pursuade the court to let them subpoena ISPs to get the subscriber details that matched those IP addresses. They would threaten those newly unmasked John Does and demand payment to drop the suit. Otherwise, Does alleged pornography viewing habits would be exposed to the world and he would probably end up paying tens of thousands in statutory damages.

Prenda is gone, but copyright trolling continues

Duffy died in 2015. Steele and Hansmeier were placed under federal indictment in December 2016 for “an elaborate scheme to fraudulently obtain millions of dollars in copyright lawsuit settlements by deceiving state and federal courts throughout the country.” And now that Steele has plead guilty to those charges, Hansmeier’s conviction seems like a certainty.

It is satisfying to see justice finally catch up with Steele and Hansmeier, but anyone who thinks that this is the end of copyright trolling has not been paying attention. In fact, other than a brief hiccup in early 2016, the filing of lawsuits designed to extract settlements from alleged online pirates has only increased since Prenda went out of business.

As my co-author, Jake Haskell, and I will show in a paper to be made public next week (we are proofreading right now), in the post-Prenda era, lawsuits filed against John Doe defendant made up more than 52% of all copyright cases in in the United States in 2014 and 58% in 2015. The number of suits dropped slightly after Malibu Media lost a case on summary judgment in January 2016, but the rate of filing is increasing again. Even so, between 2014 and 2016 copyright trolling accounted for 49.8% of the federal copyright docket.

Our analysis of the federal court filing records indicates that in 2016, the average number of defendants in each of the John Doe cases was 4.7 on a conservative estimate . In other words, although there were 1,362 John Doe copyright cases filed last year, 6,483 individual defendants were targeted. Without doubt, some of those people were illegally downloading movies, but a great many were not.

The new breed of plaintiffs who filled Prenda’s shoes are different to Prenda, but not different enough. The plaintiffs’ claims of infringement still rely on poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. Plaintiffs have realized that there is no need to invest in a case that could actually be proven in court, or in forensic systems that reliably identify infringement without a large ratio of false positives. Their lawsuits are filed primarily to generate a list of targets for collection; and are unlikely-in our view-to withstand the scrutiny of contested litigation.

The human cost of copyright trolling is significant. It is true that sometimes the plaintiffs get lucky and target an actual infringer who is motivated to settle. But even when the infringement has not occurred or where the infringer has been misidentified, some combination of the threat of statutory damages of up to $150,000 for a single download, tough talk, and technological doublespeak are usually enough to intimidate even innocent defendants into settling.

In our paper, titled “Defense Against the Dark Arts of Copyright Trolling” (available on ssrn.com next week, if all goes to plan), we  undertake a detailed analysis of the legal and factual underpinnings of these online file sharing cases against John Doe defendants. We analyze the weaknesses of the typical plaintiff’s case and integrate that analysis into a comprehensive strategy roadmap for defense lawyers and pro se defendants. In short, as our title suggests, we aim provide a comprehensive and useful guide to the defense against the dark arts of copyright trolling.

 

My letter to the Illinois AG re eBay’s Buyer Protection Program

The letter is mostly the same as my previous posts One More Sign World Is Shrinking – eBay is for Suckers and Are eBay sellers the ultimate customer, or the ultimate consumable? #brickscam

You can read the full text here, ebay-illinois-ag-letter.

I would also like to note that I made good on my promise to donate my refund to the very worthy cause of Doctors Without Borders. Syrian refugees need that money a lot more than eBay or me.

screenshot-2016-12-20-18-55-36

I will post updates if there is anything to update.

 

Are eBay sellers the ultimate customer, or the ultimate consumable? #brickscam

This post is a recap and extension on my post about eBay from a couple of days ago. I have learned a lot since that post, much of it from comments and emails. Thanks to everyone who provided helpful information!

The Brick Scam

The Brick scam works as follows: overseas criminals use remail services to disguise their identities and pretend to be residing in the United States. These criminals buy valuable or easily tradable items such as an Apple iPhone on eBay auctions, falsely claim that the item is damaged or wrongly described, insist on returning the item, but instead return something else entirely worthless. Sometimes it is a brick–thus the name–in my case it was a worthless Samsung phone from last century.

screenshot-2016-12-16-17-53-09

 

Why does the Brick Scam work?

eBay recently instituted a “Buyer Protection Program” which essentially compels eBay sellers to accept returns regardless of whether they have indicated a willingness to do so or not. This practice is deceptive .

eBay’s “Buyer Protection Program” resolves disputes between buyers and sellers in favor of the buyer by default, essentially unless the buyer admits dishonesty. In effect, there is no way for the seller to prove that buyer sent back a brick rather than an iPhone. The criminal thus obtains a refund from eBay and gets to keep the item as well.

Although the immediate cause of this problem is fraudulent buyers, eBay plays a significant role. Sellers on eBay are induced into a vulnerable position by eBay’s misleading practices and the fraud is made possible by eBay’s “Buyer Protection Program” enforced on sellers as a contract of adhesion.

This is what happened to me

In October sold a very slightly used iPhone 6S on eBay, received payment and promptly shipped the phone. The buyer waited a few days after receiving my iPhone and then contrived a disagreement claiming that the phone was damaged and not as described. Although I did not agree to accept returns when I listed the item, in part to protect myself against unscrupulous buyers, I soon learned that eBay forces you to accept returns.

By appearing to give me the option to not accept returns and then forcing me accept returns eBay exposed me to the very kind of fraudulent conduct I had tried to avoid. I believe that eBay’s conduct in this regard is deceptive and, notwithstanding terms and conditions buried in the fine print of eBay’s terms and conditions, I was deceived.

On November 14, 2016, I received this package from the Ukraine with a customs declaration describing the contents as “phone used”. Occasionally you might read the description “suspicious looking package” in the media wondered what exactly makes a package look suspicious? It looks like this:

screenshot-2016-12-14-15-04-48

Given that I had shipped the iPhone to an address in Delaware and that my address on Lake Shore Drive in Chicago was written as “LK Shr Dr” I was immediately suspicious. I took photos as I unboxed the packaged and I did so in the presence of a witness. The phone that I received to replace my mint condition gold iPhone was a beaten up old Samsung. I didn’t even know Samsung made phones like this – it looks almost exactly like an old Nokia that I had in 2002.

I thought I was dealing with a verified buyer in the US because that is what eBay and PayPal told me and I don’t accept international bids (to protect myself from fraud!). I now realize that the buyer’s address was just a box at a remail service, Ukraine Express.

screenshot-2016-12-16-18-12-53

Ukraine Express’s address comes up with a number of fraud related posts when you type it into Google.

The buyer in this story trades on eBay under the name “plasmacompany” and claims to be Dmitriy Dubogray, doing business as ITG EXPRESS, 78 McCullough Dr # 11051, New Castle, DE 19726-2079. But according to PayPal, the buyer is Vadim Grebenyk ‏(Vadex1960@gmail.com). 78 McCullough Dr., New Castle DE 19726 is the office of Ukraine Express, a remailer. Ukraine Express may be ignorant of  the fraudulent transactions that pass through its doors. Maybe?

eBay’s dispute process feels like a shell game

I tried to raise all this with eBay. I explained that the buyer had returned a worthless 10-year-old phone in exchange for the mint condition iPhone 6 I had sold. I offered to provide pictures.

I didn’t know about the Brick Scam when this happened. I did not know about remail services either. But eBay surely knows about such things! So I still can’t understand why when I told eBay that received a worthless peice of plastic for my $465 iPhone from the Ukraine, and they could see by the USPS tracking number (RF611652494UA) that I was right, why they would side with the buyer over me.

On November 25, eBay “resolved” this case in favor of the buyer with the following explanation. “The item has been delivered to you. eBay Customer Service is refunding the buyer and debiting your PayPal account for reimbursement. We understand how frustrating it is that the items condition changed but, unfortunately, we didn’t receive proof that the buyer caused the issue.”

case-is-closed

Really? Could they possibly realize how frustrating this is? 

screenshot-2016-12-16-18-40-52

In addition to this galling faux-sympathy, what this note does not explain is that eBay never gave me any opportunity to submit any proof of buyer fraud.

To cut a long story just a bit shorter, on November 26, 2016, I attempted to appeal this decision. I was not successful. eBay sent me several messages demanding payment and eventually extracted $424 from my PayPal account despite my protests.

Public Reaction

A couple of days ago I posted about this experience . The post attracted some attention on twitter and was reposted to Ycombinator’s Hacker News forum. The comments on that site were illuminating as were many posts on twitter and several direct emails. Thanks!

From these comments I learned about the Brick Scam.

“As in ‘you can’t sell apple stuff on ebay anymore because of the brick scam’. Usually, they send you a return package with a rock or brick inside approximating the weight of the original package. Its famous enough at this point that its impossible that ebay is unaware. They are fully aware and are choosing to continue to profit off of this. So much so that the “shell game” the author faced is likely scripted by this point.” Comment on Hacker News

I also learned that many people believe that eBay doesn’t have much interest in preventing fraud on small sellers.

“Ebay consumes sellers as a raw material as part of the process.” Same comment as above on Hacker News

“I used to work at eBay Trust and Safety. The place is a nightmare and will not improve. … This kind of fraud sticks out like a sore thumb in click stream. I had no trouble finding fraud and building algorithms to automatically detect it but I did find it impossible finding someone at eBay who cared enough to do anything about it. eBay still gets paid so no one wants to be in charge of a revenue hit. I doubt that’s changed.” A different comment on Hacker News

Thanks to that public reaction I got a very polite call from eBay today  informing me that it would reverse the outcome of my case and issue a refund.

screenshot-2016-12-16-19-06-33

What should be done?

I am writing to the Illinois Attorney General’s Consumer Fraud Unit to ask them to investigate. Obviously the chances to catching up with Vadim Grebenyk are slim to none, but I am hoping to convince them to attack this problem upstream.

I also hope that eBay is genuinely interested in looking after small sellers and that we are not as disposable as this process made me feel.

So, eBay, if you are still reading, I have some suggestions.

  • eBay should make it clear to sellers that they will be forced to accept returns, no matter what; and that either (i) there is no way for a seller to prove they received a brick in the mail as opposed to the valuable item they sold, or (ii) how to establish such proof.
    • People online have suggested video-taping your return unboxing, but I don’t think they would accept that as proof either.
  • To combat remailer fraud eBay should give the seller the benefit of the doubt whenever the shipping address for a return does not match address to which the item was shipped.
  • Also, sellers willing to pay for such a service should be able to insist that items are returned through a domestic pack and ship service to prevent fraud.
  • Finally, eBay should proactively identify remail services and block accounts using those services.

What am going to do with the money?

Was it worth the time and frustration to get back $400? Not really. To prove to myself that I don’t care about the money I am going to take the money eBay refunds to me and donate it to Doctors Without Borders.

One More Sign World Is Shrinking – eBay is for Suckers

If you live in an economy where officials are corrupt, contracts are hard to enforce, and trust is scarce, everyday transactions are burdensome and time-consuming. If you don’t want to get scammed, you either deal with people you know, people your relatives know, or you deal with repeat players who have an interest in their reputation. Lack of trust makes market small and transaction costs high. The wonderful thing about eBay when it first arrived was that it freed so many people from the tyranny of small markets. eBay provided a marketplace where trust was built on reputation and feedback and the size of markets was only constrained by the cost of shipping. Recently, however, eBay has reengineered its services so that buyer trust is based on a seemingly absolute guarantee that the seller will always lose in any dispute.

No one should be surprised that unscrupulous buyers use eBay to commit fraud on unsuspecting sellers. What surprised me was the extent to which eBay now facilitates this fraud through its “buyer protection program”. In October this year I listed a very slightly used iPhone 6S for sale on eBay and was quite satisfied when it eventually sold for $465. This satisfaction was short-lived, however, as I came to realize that I had been taken in by an eBay scammer.

I shipped the iPhone on October 17 via UPS almost immediately after receiving full payment in my PayPal account. I had the money, so I assumed everything was going to be fine. Everything was not fine. The buyer waited a few days after receiving the package and then fabricated a disagreement claiming that the phone was damaged and not as described. The delay and the his outlandish claims made me suspicious, but I offered to refund 5% of the value of the transaction just to make him go away and preserve my good seller reputation.

The seller immediately rejected my refund offer and made a return request. I am not completely naïve. I don’t accept payment by check or Western Union and I don’t accept returns. So I was pretty surprised to find out that eBay could force me to accept a return request – eBay explained that my options were to refund the buyer and let him keep my phone or approve the return request. Grudgingly, I accepted the return. On November 2, eBay instructed me to refund the buyer when the return was delivered. On November 4, eBay invoiced to me $46.53 for the listing and sale, which I paid.

Occasionally you might read the description “suspicious looking package” in the media wondered what exactly makes a package look suspicious? It looks like this:

screenshot-2016-12-14-15-04-48

On November 14, I received this package from the Ukraine with a customs declaration describing the contents as “phone”. Given that I had shipped the phone to an address in Delaware and that my address on Lake Shore Drive was written as “LK Shr Dr” I was immediately suspicious. The phone that I received to replace my mint condition gold iPhone was a beaten up old Samsung (I didn’t even know Samsung made phones like this – it looks almost exactly like an old Nokia that I had in 2002).

img_3798

The same day the bogus return arrived, I received an instruction from eBay commanding me to issue a refund. At this point I knew with absolute certainty that there was no way I was going to win this fight. I didn’t understand how but it was obvious that the seller had gamed this through to the end. That he knew how to play the system was evidenced by the fact that his bogus return arrived just one day too late for me to revise my review and warn others not to do business with the user called plasmacompany.

On November 18, more out of curiosity than anything else, I entered into the bizarro world of online dispute resolution and opened up a case with eBay. I explained that the buyer had returned a worthless 10-year-old phone in exchange for the mint condition iPhone 6 I had sold. I offered to provide pictures.

On November 25, eBay “resolved” this case in favor of the buyer with the following explanation.

  • “The item has been delivered to you.” A lie.
  •  “eBay Customer Service is refunding the buyer and debiting your PayPal account for reimbursement.” Actually the money is still in my PayPal account.
  • “We understand how frustrating it is that the items condition changed …” 1. I sincerely doubt that they do understand. 2. “Changed” does not really do it justice when an iPhone 6S magically transforms into a beaten up old Samsung from the early 2000’s. 3. There should be an apostrophe after item (item’s condition).
  • “…  but, unfortunately, we didn’t receive proof that the buyer caused the issue.”  Well, of course eBay did not receive any proof, eBay is entirely uninterested in allowing you to submit proof of buyer fraud.

case-is-closed

On November 26 I attempted to appeal this decision. This involves calling eBay, a Kafkaesque experience I can’t honestly recommend. The initial telephone message I received told me that the buyer had appealed and that no action was required of me at this time. Utterly confused, I kept at it until I was able to speaking to an actual person who then explained to me that because eBay does not handle the item directly they have no way of knowing who is telling the truth. A fair point, except that my shipping documents prove that I sent an iPhone (I used UPS pack and ship) and the return documentation simply says “phone” and was shipped from overseas. These two facts alone are incredibly suspicious. The eBay representative offered to connect me with a risk management team, but my call was simply routed back to customer service who transferred me to the appeals department. The notes I took at the time say “this feels like a shell game” and nothing since has altered my view.

I did get to speak to someone in the appeals department eventually and she told me that they could not grant an appeal because they had no proof. But of course, everything about this process is designed so that you have no chance to submit any proof. They did offer that I could report the buyer and that the buyer would be investigated. I did, but I doubt anything will ever come of it.

I had assumed that eBay would simply take the money from my PayPal account, but they don’t seem to have the power to do that. (I upgraded all my passwords after the election at the urging of my more security conscious friends.) So, eBay continues to insist that I pay my “eBay money back guarantee case” and they have helpfully suggested that I should add my reimbursement payment method to my personal information. Hah! Fat chance that I am every letting eBay near my PayPal account again.

eBay maintains that as a seller, I agreed to permit them to make a final decision in their sole discretion on any case the buyer opens with eBay under the eBay money back guarantee policy. I have no recollection of making this agreement, this is not a term I would have agreed to knowingly, and I have seen no evidence that I made such an agreement. I’m beginning to suspect that eBay is not being entirely straightforward here.

The slightly tangential way eBay describes things makes me think that they don’t think I have a legal obligation to defraud myself either. My account balance as of December 2, 2016 was $0, even at the same time that eBay is demanding a payment of $465.26. I tested this by trying to make a payment of $0.01 into my account.

screenshot-2016-12-14-16-02-55

If I really owed them this money, wouldn’t they reflect it in my account balance? Maybe this is just paranoia, but when an organization you used to trust takes the side of the fraudsters and the con-artists you begin to question everything they say.

I did not agree to accept returns for the sale when I listed the item. I don’t recall agreeing to eBay’s unilateral money back guarantee system. I suspect that I never agreed and that eBay is trying to confuse me into paying for a fraudulent refund. eBay is misleading sellers like me who would find a another marketplace rather than participate in one where they will be forced to accept returns and grant refunds in the face of transparent fraudulent activity.

eBay is an enormous company with over $8 billion in revenue a year, so naturally it’s difficult to talk to anyone there who is not a computer (or a human whose responses are so routine and uncomprehending that they may as well be a computer). I figure that if I continue to ignore their demand for payment things might eventually escalate to the point where I get to speak to an actual human.

For the record, the buyer was using the name “plasmacompany” on eBay but according to PayPal he or she is really Vadim Grebenyk ‏(Vadex1960@gmail.com) doing business as ITG EXPRESS, with a shipping address of 78 McCullough Dr # 11051, New Castle, DE 19726-2079, United States. According to eBay, the buyer’s name is Dmitriy Dubogray. Same company and address. There may be a real Vadim, or Dmitriy or ITG Express whose names have been appropriated by some fraudster. If so, sorry to drag you into this.

Copyright Trolling in Chicago (17980 IP addresses and counting)

WBEZ ran a story on Thursday, based in part on my research first published in the Iowa Law Review. The story, Why Are So Many People In Northern Illinois Being Sued For Downloading Porn? by Miles Bryan is an excellent overview of a complicated topic.

Focus on Chicago

Although these John Doe lawsuits are a nation-wide phenomenon, Chicago (technically, the Northern District of Illinois) is the leading destination for what many people regard as ‘copyright trolling’. The Northern District of Illinois has accounted for roughly 15% of all copyright John Doe lawsuits nationwide since 2013.

The Northern District of Illinois covers 18 counties across the northern tier of Illinois, with a population of about nine million people. The Southern District of New York which encompasses New York City and the Southern District of California which includes Los Angeles are much larger in terms of population, yet the SDNY has only had 531 John Doe cases in the same period that Chicago has seen 1603. The Southern District of California has seen a mere 165.

Since 2010 (up until June 2016) lawyers in the greater Chicago area (technically the Northern District of Illinois) have filed over 1600 John Doe copyright cases (1603 at last count). This practice is now so common in Chicago that these suits outnumber regular copyright lawsuits by a ratio of more than 4 to 1 (there were 385 regular copyright suits in the same period.)

WBEZ’s Graph based on my data

Because of the way these suits are filed, one lawsuit can sweep in a large number of IP addresses. Based on court records, my conservative estimate of the number of IP addresses involved in one of these suits in the Northern District of Illinois since 2010 is 17,980. Not all of these cases involve pornography, but the vast majority do, 73% in the Northern District of Illinois.

In 2015 alone, Chicago court saw just 48 regular copyright lawsuits filed, and 395 John Doe copyright lawsuits.

John Doe copyright lawsuits accounted for 58% of all copyright cases filed in 2015

Across the entire country, John Doe copyright lawsuits have risen from just under 4% of all copyright filings in 2010 to more than 19% in 2011, 43% in 2012, 46% in 2013, 51% in 2014 and just under 58% in 2015.

One pornography company, Malibu Media accounted for 40% of all federal copyright cases filed in 2014 and 2015. However, data collected for the first four months of 2016 shows that Malibu Media’s influence is declining (it accounts for only a quarter of all federal copyright cases filed in 2016 so far) and that there may be fewer John Doe cases filed this year if current trends continue. Last year there were 2930 cases filed, so far this year there have been only 690. John Doe cases for the year to date account for only 39.5% of all federal copyright cases.

Why Chicago?

One of the questions that Miles asked me to think about is why this phenomenon is so prevalent in Chicago?

The first thing to note is that Chicago is not alone. New Jersey actually had more of these cases in 2015 and the Southern District of New York had only slightly less. The five leading federal districts for john doe copyright cases in 2015 were

  • New Jersey – 386
  • Illinois (ND) – 395
  • New York (SD) – 248
  • Maryland – 194
  • Virginia (ED) – 153

But the Chicago cases involved many more IP addresses (almost 10 times as many!) and thus effected many more people.

Part of the answer to the question of why Chicago is that Chicago is large metro area with a lot of potential targets, so the economies of scale make it attractive to set up shop here. But that does not fully explain it. I think that another import part of the story is that judges in Chicago have not been as hostile to these suits as some judges in New York and Los Angeles.

Judges in the Northern District of Illinois are not exactly thrilled about john doe litigation, however, they has not closed the door to this kind of litigation and they are more tolerant of joining large numbers of IP addresses in a single lawsuit.

Related Publications:

Matthew Sag, IP Litigation in US District Courts: 1994 to 2014, 101 Iowa Law Review 1065-1112 (2016) (download from ssrn) Data updated for 2015  (http://ssrn.com/abstract=2711326)

Matthew Sag, Copyright Trolling, An Empirical Study, 100 Iowa Law Review 1105-1146 (2015) (download from ssrn)

Is software expressive? Yes, but who cares? #IPSC16

My brief response to some comments at IPSC today re software functionality and expression.

Writing software obviously involves considerable human ingenuity, however, no one buys software to appreciate the expressive attributes of its source code. The difference between software and other forms of written communication can be demonstrated by asking the question, “what makes it good?”

For most works of authorship, there really is no consensus. However, computer scientists and software engineers will inevitably respond that good code is simple, readable, efficient, and well structured. No one says that software should be expressive, moving, that it should speak to the human condition or have emotional resonance. Software is primarily functional and good software is good because it functions well and does things that people want done.

Loyola is hosting the Society for Economic Research on Copyright Issues Annual Meeting Today

The SERCI Annual Congress 2016 is being held at Loyola University Chicago School of Law, Chicago, 7-8th July and is co-hosted by University of Illinois College of Law.

The Society for Economic Research on Copyright Issues or SERCI was established in 2001 to provide a solid academic platform for the application of economic theory to copyright policy.

The complete program is posted online at http://www.serci.org/congress.htm.

My slides for my presentation on empirical studies of copyright litigation are available here.

Getty’s high-resolution competition law complaint against Google in the EU

Getty Images has filed a competition law complaint against Google

I have some initial thoughts as follows:

Image Search vs. High-Resolution Image Search

Google’s rationale for image search in general is that displaying the image is necessary for the user to assess how well the image corresponds to their search. This practice has been litigated at least twice in the U.S. in relation to thumbnail images and has easily passed the test of fair use.

Getty’s complaint is directed more specifically to the creation of high-resolution galleries. Although Google could make a similar argument that you need to see the image in high resolution to properly evaluate it, my view is that this argument is not nearly so compelling. The high resolution display is more expressive and less informational and the potential adverse effect on the copyright owner is greater for that reason and because, as Getty points out once consumers see an image on the Web, they aren’t likely to go to the source and look at it again. Getty argues that Google Images’ creation of high-res galleries of copyrighted content is thus impacting Getty’s own image licensing business; promoting piracy and copyright infringement; and bolstering Google’s monopoly over site traffic, engagement data and ad spend.

[Update: It is worth noting that other design changes may have reduced the flow on traffic from Google Image search see this 2013 Search Engine Land story]

Basically, Getty is worried that it is far too easy to right-click and copy image from Google Image Search and that as a result people won’t click down to Getty’s now site.

Illustration: Right-Click Options On Getty’s Own Press Release

Screen Shot 2016-04-27 at 3.58.51 PM

Is there a copyright case?

Getty is an American company complaining about another American company’s treatment of its copyrighted properties and so it is less than obvious that the complaint would be dealt with in the EU under antitrust law rather than in the US under copyright law. I would need to understand the technology behind the high resolution image display to say whether Getty has a strong case for copyright infringement under U.S. law, but I think there are clear differences between the fair use status of low-resolution thumbnails and the high resolution images available on Google image search today.

Is there a competition law case?

It seems to me that providing high resolution galleries makes it at least marginally less likely that users will click through to the original site. This in turn makes it marginally more likely that users will copy and paste without authorization. But I would note that Google is under no obligation to design its information services in a way that drives traffic to a particular website, or external websites in general. The design of Google image search would make a poor antitrust case in the US but it might go further in the EU because they take a broader view of “abuse of dominance”. The main problem I see is that even if Google image search increases the unauthorized use of images, it probably does not affect the market for licensed images. I think that people looking to license stock footage will go to stock photo sites, but this is an empirical question so we would need to look at how the market actually works.

 

Getty Images says that, when it first raised concerns about this with Google, it was told to accept Google’s presenting of images in high-res format or opt out of image search. Since its founding, Google has relied on the fact that people can opt out of search to address complaints about the way search is run. Participation in Google image search is voluntary – on an opt out basis – but that does not give Getty, or anyone else, the right to say exactly how they would like the search engine to run. In 2013 Google agreed with the FTC to make changes to the way it scrapes the content of rivals like Yelp. Sites like Yelp can now opt out of having their content scraped without opting out of search entirely. This is probably what Getty is looking for. But the issue for Getty is that it does not compete with Google they way Yelp does, so their case is not as strong.

It’s hard to say how might EU regulators will view Getty’s complaint. It depends on some facts that we don’t have access to at the moment — I have only seen the press release, not the complaint itself. It also depends on whether the EU case against Google has more to do with politics and protectionism than it does with the merits of competition law. If Google settles with the European commission, the settlement might include modifications to the way image search works and that would be a significant win for Getty. From Google’s point of view the worst case scenario is that it would be forced to make a change to image display within the EU. I don’t think Google will change image search in the US unless it thought Getty had a case under American copyright or antitrust law.