Copyright Enforcement Doesn’t Always Pay

Eric Goldman–who’s wonderful blog is my personal CLE on Internet law–posted a summary and discussion of a recent case in Oregon, Cobbler v. Doe. Here the court refused to award attorneys fees to the plaintiff in a torrent case. Defendant illegally downloaded The Cobbler–which some would argue is punishment enough–and was sued by the rights holder. Defendant agreed to pay $750 for the violation plus another $190.20. Plaintiff asked for another $4,700 in attorneys fees, which the court could grant under 17 USC Section 505. The court denied the request.

Within a discussion of the court’s discretion to award attorney’s fees in copyright infringement cases (see, Fogerty v. Fantasy and Kirtsaeng v. Wiley), the court also looks at the phenomenon of copyright trolling (i.e., business that primarily revolve around litigating infringement and seeking settlements).

The Copyright Act, as it is being enforced in these BitTorrent cases, has created results inconsistent with the goals of the Act. When an individual who has illegally downloaded a movie is contacted by Plaintiff’s counsel, and faces the threat of a statutory damage award that could theoretically reach $150,000 (see 17 U.S.C. § 504(c)(2)), as well as the threat of a substantial attorney fee award, the resulting bargaining process is unequal, and unfair. For this Court to award Plaintiff its attorney fees in this case would only contribute to the continued overaggressive assertion and negotiation of these Copyright Act claims.

At the end of his post, Professor Goldman poses the question, “Is it possible to run a wide-scale copyright enforcement campaign profitably?”

If the above passage is indicative of other courts’ views, I am guessing the answer is no.