Luke S. Curran


The scarlet letter of the term “troll” has long been affixed to the lapel of businesses within the patent context. This pejorative term, however, has had little relevance or widespread public recognition within the domain of copyright law until 2010. Since the awakening of the “copyright troll,” several non-author rights holders have recently adopted and propagated a substantially modified version of this sue-to-settle paradigm within the context of copyright law while introducing it to the scale of mass-litigation. Further, the amorphous term “copyright troll” traditionally characterizes a business practice of acquiring unenforced copyrights that are being infringed upon through various online media vehicles while monetizing the fundamental disconnect between the current copyright law and Internet users’ behavioral norms. Without typically authoring original works of expression, these businesses seek to extract rapid settlements from a nexus of antiquated intellectual property laws while chilling free speech and disincentivizing innovation. As a result of creative manipulation, both the original policy-backed intentions instilled by the Framers within the 1976 Act and the delicate balance between hyper- and hypo-enforcement have been patently disrupted. Moreover, the ramifications of “troll” litigation tactics have ensnared countless innocent users into costly litigation and settling unwarranted claims to avoid being perpetually associated with the illegal activity of online copyright infringement. As the scope of online copyright infringement continues to exponentially expand, this legal uncertainty acts as a catalyst for those willing to probe the outskirts of the Act. This comment focuses on three specific businesses publicly labeled as “copyright trolls,” details their evolution from hyperlinking to peer-to-peer file-sharing, and analyzes the current state of copyright law in the realm of the digital marketplace.