Patent Law

Cory Doctorow Proposes "Kickstarter" Defense Against Patent Trolls, Copyright Trolls, and Copyfraudsters


Patent Troll
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Over at Locus, sci-fi author and Boing Boing co-editor Cory Doctorow outlines an intriguing proposal on how to crowdsource a defense against patent and copyright trolls. The basic collective action problem is that trolls have a huge incentive (concentrated benefits) to demand payments from thousands of allegedly infringing companies and individuals (diffuse costs) under the threat of expensive lawsuits. Doctorow reports that patent trolls extort $29 billion annually from lawsuit-wary companies.

In his new article at Locus, Doctorow offers what he calls the Magnificent Seven solution. In that 1960 western movie, a farming village hires seven gunslingers to help defend themselves against extortionist bandits.

To counter patent trolls, Doctorow suggests that it might be possible create a Kickstarter-like mechanism to aggregate fees from companies and individuals to fight back against the trolls, making it too expensive for them to threaten infringement lawsuits. From Locus:

Imagine a Kickstarter-style service for a new kind of class-action lawsuit: the class-action defense…

What would a Kickstarter for Class Action Defense look like? Imagine if you could pledge, "I promise that I will withhold license fees/settlements for [a bad patent/a fraudulent copyright fee/a copyright troll's threat] as soon as 100 other victims do the same." Or 1,000. Or 10,000. Hungry, entrepreneurial class-action lawyers could bid for the business, offer opinions on the win-ability of the actions, or even start their own kickstarters ("I promise I will litigate this question until final judgment if 1,000 threat-letter recipients promise to pay me half of what the troll is asking.")

Basically, it's the scene where the villagers decide to stop paying the bandits and offer the next round of protection money to the Magnificent Seven to defend them.

There's a lot to like about this solution. Once a troll is worried about a pushback from his victims, he'll need to raise a war-chest, and since the only thing a troll makes is lawsuits, he'll start sending more threats. Those threats will attract more people to the kickstarter, raising its profile and its search-rank. The more the troll wriggles, the more stuck he becomes.

Doctorow's proposal does help solve this particular collective action problem inside the bounds of our current legal environment. As he notes:

Getting screwed by thieving, amoral ripoff artists sucks. The reason people give in to the blackmail is because it is unimaginably, impossibly expensive to fight back. I think that if we can nudge "unimaginable and impossible" into the realm of mere "expensive and time-consuming," we'd have armies lining up to hand these crooks their asses.

As I have argued, a far better solution would be for Congress to entirely eliminate software and business practice patents, and to limit copyright to the life of the author plus ten years. In the meantime, let's go with Doctorow's proposal.

For more background on how patent trolling stifles innovation, see my column, "Patent Trolls of Tech Fairy Godmothers."

H/T Jeff Patterson.