Tag Archive for: Trolls

No, Trademark Trolls Collecting Various Fake Names For A Washington Football Team Will Not Get In The Way Of The NFL Team’s Renaming

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As was widely expected, the NFL team based in Washington DC, formerly using the “Redskins” as their team name, will be renaming themselves after years of people pointing out that the name is racist, and the team being so obnoxious that it has literally sued native Americans who had previously sought to cancel the team’s trademark. Either way, what finally got the Dan Snyder-owned team to ditch the name was… money, of course. The biggest sponsors of the team began to threaten to pull support, and that finally convinced Snyder to do something he should have done a long time ago.

Of course, the story that many are focusing on following the official announcement to find a new name is… the fact that some dude has been busy filing trademark applications on a bunch of possible replacement names.

And if you don’t understand trademark law, that might sound legit, except that none of this is getting in the way of the team picking a new name. We’ve talked in the past about how people always try to rush in and trademark stuff in hopes of getting some crazy payday, but that’s not how trademark law works. You can apply for any trademark (though the costs will add up) but you’re unlikely to get it unless you have actual plans to use it in commerce and you’re not just registering it as a troll.

To his credit, Philip Martin McCauley at least claims that he understands all this and has even set up a website (which I’m not linking to) which offers merchandise featuring the logos of his totally fake Washington DC football team names. That at least gives him a modicum more defensibility than your everyday trademark troll.

United States law requires that the holder of a trademark actually use the term in question.

McCaulay is aware of the provision, which is why he’s spent thousands of dollars creating team merchandise to back up his claims.

In doing so, he said he’s no ordinary trademark squatter, a term with negative connotation used in similar situations.

“A squatter reserves a name with no intention to use it,” McCaulay said. “I went to the extreme of buying a lot of merchandise, making it my brand, and selling it.”

But the idea that this will, in any way, prevent the actual football team from choosing a name it likes is pretty silly. Perhaps the team would pay off McCauley just to avoid the hassle, but it won’t be because of any legitimate claim to the trademark — just a pure nuisance fee to avoid bad press and wasteful litigation. And, to be honest, Dan Snyder has never struck me as someone who cares much about avoiding bad press or wasteful litigation.

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Judge Shuts Down Copyright Troll’s Cut-And-Run Effort; Hits It With $40K In Legal Fees

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The art of copyright trolling is completely artless. There’s no subtlety to it. Flood federal courts with filings against Does, expedite discovery requests in hopes of subpoenaing a sue-able name from a service provider, shower said person with threats about statutory damages and/or public exposure of their sexual proclivities, secure a quick settlement, and move on.

It doesn’t always work. At the first sign of resistance, trolls often cut and run, dismissing lawsuits as quickly as possible to avoid having to pay the defendant’s legal fees. This isn’t anything new. And there are very few courts left that treat the rinse/repeat cycle as novel. Judges are calling trolls trolls with increasing frequency and more than a few trolls and their legal representation have turned to theft and fraud to make ends meet.

Via Fight Copyright Trolls comes another decision where a porn-based copyright troll is getting its financial ass handed to it by a federal judge. Strike 3 tried to dismiss a lawsuit when it became obvious it couldn’t prove infringement, opting for a voluntary dismissal without prejudice in hopes of dodging a bill for legal fees. It didn’t work.

After some discussion of the technical aspects of Strike 3’s aborted discovery attempt — which involved Strike 3’s experts failing to find evidence of infringement on the defendant’s hard drive — the court gets down to the business of cutting the troll off at the knees to prevent it from escaping the costs of its bogus litigation.

The court [PDF] says Strike 3 can’t have everything it wants — the cake, the celebratory disposable plate, the opportunity to consume the cake at its leisure, etc. Arguing that this is cool because some other troll tried it doesn’t impress Judge Thomas Zilly.

Unlike in LHF Productions, in which an alleged BitTorrent user’s counterclaim for a declaration of non-infringement was dismissed as moot in light of the plaintiff’s dismissal with prejudice of the underlying copyright infringement claim, in this matter, Strike 3’s voluntary dismissal was without prejudice, see Notice (docket no. 53), and in contrast to the plaintiff in Crossbow, Strike 3 has not provided any covenant not to sue. Indeed, not only has Strike 3 preserved its ability to pursue further litigation against John Doe, it has indicated that it will not consent to a declaration of non-infringement unless John Doe is precluded from receiving attorney’s fees and costs and Strike 3 is explicitly permitted to bring copyright infringement claims against John Doe’s son.

Then the court quotes another case involving yet another copyright troll (Malibu Media) to shut down Strike 3’s “heads we win, tails you lose” exit strategy.

In essence, Strike 3 is attempting to thwart John Doe’s efforts to obtain attorney’s fees and costs by, on the one hand, refusing to dismiss its Copyright Act claim with prejudice and thereby denying John Doe “prevailing party” status, while on the other hand, deploying its dismissal without prejudice as a jurisdictional shield against John Doe’s declaratory judgment claim. The Court will not permit Strike 3 to use such “gimmick designed to allow it an easy exit… [now that] discovery [has] reveal[ed] its claims are meritless.”

The court is going to hand the defendant the victory, as well it should. The burden of proof for infringement rests on the accuser and Strike 3 failed to show any infringement occurred. Since Strike 3 can’t prove this — and its attempt to dismiss the case makes it clear it has no intention of proving infringement occurred — the defendant’s declaration of non-infringement is the default winner.

Consistent with Strike 3’s lack of proof of copying, John Doe’s expert has indicated that John Doe’s computer does not contain any of the motion pictures described in Exhibit A to the Complaint. No genuine dispute of material fact exists, and John Doe is entitled to judgment as a matter of law. John Doe’s motion for summary judgment is GRANTED, and a declaratory judgment of non-infringement will be entered.

Since Strike 3 lost — and engaged in a bad faith dismissal to dodge paying Doe’s legal fees — the defendant and his representation are getting almost everything they’ve asked for. That’s $ 40,000 in legal fees and $ 7,000 costs Strike 3 will have to pay for two years’ of failed litigation. But mostly Strike 3 paying because it tried to forfeit rather than take the L.

As the court notes, the tide of trollish litigation may be slowing, thanks to the Ninth Circuit’s Cobbler Nevada decision. It’s not over yet. This isn’t the last time we’ll see a troll light itself on fire in its haste to escape a losing lawsuit. But it’s enjoyable all the same.

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Online trolls have hijacked the national conversation. Here’s what newsrooms should do about it – CNN

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Online trolls have hijacked the national conversation. Here’s what newsrooms should do about it  CNN
“HTTPS hijacking” – read more

Bahnhof Continues Its Crusade Against Copyright Trolls, Claims Swedish Copyright Law Divorced From Reality

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While it’s always great to have ISPs side with their customers rather than capitulate to copyright trolls or the governments that allow them to operate, few go to equal lengths as Swedish ISP Bahnhof. Bahnhof is known for taking all kinds of actions to protect its customers and for fighting back against copyright trolls as viciously as possible. Happily, Sweden’s Pirate Party has recently declared its own war on copyright trolls, giving the ISP an ally in the region.

But as the crusade by Bahnhof continues, the person in charge of the ISP’s communications has published an open post on the company’s site attacking the very heart of the laws that allow copyright trolls to operate in the first place. Here’s how Carolina Lindahl sets the stage for what is currently going on in Sweden.

Lindahl notes that the Swedish Government sees a need for strict copyright infringement penalties while keeping the barriers for creators to go to court low because they often have limited resources.

“In copyright litigation […], it is often the author himself who is a party, and usually the author has limited financial resources,” the Government’s code for Penalties for Certain Serious IP violations reads.

When it comes to the low barriers in the Swedish legal system for allowing copyright holders to unmask ISP customers and go after them for settlements, this is the entire justification. And, look, you can understand how this would seem logical to many people. A musician, or author, or indie filmmaker needs to be able to protect him or herself from copyright infringement in a way that is low-barrier in cost and time. It was with those types of content makers in mind that the Swedish government organized its current copyright law.

The problem for that same government is that Lindahl is dedicated enough to have dug into the data to find out if the premise that built these laws actually holds up. It does not. Not even close.

Lindahl sifted through the legal paperwork related to copyright infringement cases filed at the Criminal Court, to see which companies are behind them. The research uncovered 76 cases, the majority of which formed the basis for the tens of thousands of piracy settlement letters that were sent out. Only five of these cases were filed by the creator of the work, Lindahl notes. In other instances, the creators were represented by intermediaries or licensees, such as Copyright Management Services and Crystalis Entertainment. While these companies may have the legal right to pursue these cases, they are not the original creators of the films they sue over.

“The government’s claim – that it is often the author himself who is a party – does not seem to be correct at all,” Lindahl writes.

Lindahl goes on to note that the other premise, that these plaintiffs are authors of limited financial resources, is also untrue. Going through the cases that have led to copyright trolling efforts again, they tend to have been brought by organizations that have millions in revenue. Because of a reality that differs from the government’s premise, Lindahl argues that the end result is the extortion of citizens who actually are of limited means.

“The result is an extortion operation that is profitable for already profitable media companies and costly for young people, retirees, and other individuals on the margin, without the capability to tackle sudden costs of thousands of kronor.”

Frankly, this is as complete a takedown of the false reasons for allowing copyright trolling to be legal as I’ve seen to date. The Swedish government has a problem in that it’s reasoning for setting this copyright system up is on the record. That reasoning, as Lindahl has shown, is flawed beyond use. So that makes the law rather flawed as well.

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