When I first came into the legal profession, it wasn't financially worthwhile to bring copyright and trademark infringement lawsuits unless one could prove substantial damages, or that the offender had earned substantial profits, emanating from the infringement.
There was such a thing as "statutory damages", meant to provide for nominal damages in cases of a minor nature, such as where a church youth group staged a few performances of "Jesus Christ Superstar" without getting the rights, or a local bar played some music without getting a license from one of the rights groups.
Due to the outsized political clout of big companies with valuable intellectual property, the laws were amended to increase the amounts of statutory damages to ridiculous, arguably unconstitutional, sums. In copyright the statutory damages for infringement of a single 99-cent song could be as much as $150,000. In trademark the statutory damages for infringement of a single trademark in a single transaction could be as much as $2,000,000.00.
What this did was open the door to copyright and trademark "trolls", i.e. rights holders who derive more money from bringing lawsuits and settling them than from normal exploitation of their rights. US District Judge Hellerstein defined the term this way: "plaintiffs who are "more focused on the business of litigation than on selling a product or service or licensing their [copyrights] to third parties to sell a product or service." Malibu Media v. Doe, 2015 WL 4092417 (U.S.D.C. S.D.N.Y. 2015)
It appears that the majority of copyright and trademark cases brought these days are "troll" cases.
The "law", though, is not easy to find, because the defendants in these troll cases usually do not have the money or the financial incentive to fight, so there is a paucity of contested actions and of meaningful published decisions.
I intend to focus this blog on developments of interest in this area.
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