Document Type

Article

Publication Date

2013

Abstract

In the Norwegian folktale Three Billy Goats Gruff, three goats seeking to get fat on the greener pastures of a distant hillside were stopped at the foot of a bridge by a “great ugly troll, with eyes as big as saucers, and a nose as long as a poker.” The troll allowed the first two goats to pass when they assured him of a larger goat to come. Unfortunately, the troll bit off more than he could chew: the third goat was larger than the troll and not the least bit intimidated. The goat launched himself at the troll and smashed him to bits, providing safe passage for him and his smaller companions. The goats easily reached the field and ate heartily, but not without cost: they soon ate so much that they were “scarce able to walk home again; and if the fat hasn’t fallen off them, why they’re still fat.”

This ancient folktale provides an apt metaphor for a group of recent copyright infringement cases. A copyright “troll” company called Righthaven became known as the first copyright troll when it filed infringement claims against websites and bloggers on behalf of newspaper publishers. At first Righthaven successfully overwhelmed its targets, which agreed to pay a small fee to make the lawsuit go away. Once the more formidable adversary of the Electronic Freedom Foundation entered the fray, however, Righthaven met a similar fate as that of its Norwegian predecessor. But like the goats which reached their goal only to pay the price of never being able to return home, the champions of a free Internet lost an opportunity to reaffirm the protections they so ardently seek.

Part I of this Note traces the ideological origins of Righthaven from trolling practices in a sister area of intellectual property law, patent law, to analogous practices in copyright. Part II examines the particular forms of trolling that Righthaven employed to protect newspaper articles and the court system’s reaction to the company’s practices. Part III argues that the Righthaven decisions may have won the battle against one copyright trolling campaign but leave unresolved important issues of jurisdiction, the scope of fair use exemptions to copyright law on the Internet and the future of the newspaper industry in an increasingly competitive digital marketplace. The Righthaven cases might have brought some much needed clarity to a host of important legal and policy questions, but the courts’ swift and punitive rebuke of a particularly abusive troll amounted to a missed opportunity for development of the law. Ultimately, the failure of the judiciary to provide much needed guidance is two-fold: copyright holders and potential infringers are left with little guidance as to what forms of use of copyrighted material on the Internet are appropriate, and the rationale behind maintaining certain copyright enforcement regimes and decrying others is left to critical rather than judicial interpretation.

Comments

Winner of the 2013 Andrew D. Fried Memorial Prize.

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