Hit & Run

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


Patent Troll
Diver721: Dreamstime

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.

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  1. I have a hard time trusting anything from Doctorow. He is one of the main reasons BoingBoing can be so unreadable at times.

    1. JHC: However, his Locus article is quite readable.

    2. Sure, he's a proggie. But that doesn't exclude him from having good opinions on some things.

      Just as proggies grudgingly acknowledge that libertarians are on the right side about NSA spying, for example.

      Don't be that Team player.

    3. what does the H stand for?

  2. It doesn't overcome the basic issue: infringement plaintiffs can generally get attorneys on contingency, defendants generally can't.

  3. plaintiffs can generally get attorneys on contingency,
    defendants generally can't.

    I think this is an important point. Perhaps "loser pays" would alter this.

    1. A three tier system would do wonders: defendant guilty, not guilty but reasonable cause to bring suit, not guilty and victim of unreasonable suit. The first and third being loser pays, the middle way being everyone pays their own fees.

      Someone has to make the distinction, why not just vest that in the jury?

      1. because jurors are morons. (logically following from the fact that a large portion of people are morons, and that lawyers love morons because they can sway them with the feels.)

      2. not guilty and victim of unreasonable suit.

        Why did the suit go to trial in the first place?

        1. Exactly. But this is already the basis of tort reform, allowing both lawsuits to be dismissed with prejudice AND allowing recovery mechanisms. But there are going to be some set of not guilty where you can understand why they sued. In many of these cases is costs $50k to get to that point and the guy is asking $30k. Or, pick your number.

          1. Mandatory arbitration before a the suit is actually filed? A primary level of yes or know decided by an unbiased party?

            1. No, the ability to motion for a judge to dismiss the case with prejudice. Which there are lots of grounds for motions to dismiss. But I am advocating that it be pushed to juries being able to make a judgment against both the plaintiff and the defendant.

              1. wouldn't this require the jury to sit and hear the facts and arguments on both sides- meaning it still costs money? How could a jury make that decision without argument presented?

                1. Oh yes. But now the risks are on both sides. Right now much of the risk falls on the defense, because many plaintiff lawyers work on contingency but no defense lawyers do. So it costs the defense something to get to the jury (or even motion to dismiss) while the plaintiff may not have any financial exposure to get there. If the jury could find a judgment for the defense, it would shift the risk/downside. Hopefully, without making justice a test of who can bring the most resources to bear.

                  1. I can hope with you, but I'm too cynical to believe that it would become anything but. I think a quick arbitration, paid for by the party bringing suit if the arbiter kicks the case, otherwise would be faster, cheaper, and less risk to the innocent defendant.

                    Even with a loser pays if jury says system, there is still massive risk to the defendant. This massive risk, even in the suit is frivolous, is enough to pressure settlement in some cases.

                    1. Even with a loser pays if jury says system, there is still massive risk to the defendant. This massive risk, even in the suit is frivolous, is enough to pressure settlement in some cases.

                      And, frankly, those with the assets to be sued are always going to be more at risk of having to spend some assets to protect the rest. Ideally, they would simply disbar plaintiff lawyers who were found to meet certain criteria of shakedowns. Because there really is a risk of being denied a just claim by being disproportionately poorer than the other party. Contingency, in and of itself, isn't the problem. But the risk/reward for plaintiff's lawyers is out of balance.

                    2. Ideally, they would simply disbar plaintiff lawyers who were found to meet certain criteria of shakedowns.

                      Ideally, Scarlett Johanssen would give me a blowjob. Equal probability.

        2. Make the legal representation rather than the losing party themselves financially responsible for suits dismissed with prejudice.

          Afterall, the lawyers responsibility is to provide sufficient legal expertise to his client, and if the case is bad enough it gets dismissed with prejudice but was brought to trial anyway

          1. Yeah. I think that's where I'd rather be, but no way is that ever happening. Also, it would be reserved for lawyers who piss of the judge.

      3. why not just vest that in the jury?

        I would rather the distinction be made by the jury than by the judge. Another key component that our system sorely needs is the idea of defendant agreement with the verdict (and outlawry as a fallback if no agreement can be reached). This prevents the plaintiff and jury from completely ganging up on the defendant and imposing arbitrary punishments.

      4. This is already the case in patent suits, but the decision to award attorney fees is vested in the judge. It doesn't help, because companies don't like gambling even if there's an upside, and because it's very difficult to show that a patent duly issued by the USPTO is so bad that the plaintiff should have known it was frivolous to enforce it.

    2. How about, "loser's lawyer pays"?

      1. Non-rich people will not be able to find an attorney. Or attorneys will have to pony up for very expensive litigation insurance, which justifies massive fee increases from ridiculous to unbelievable.

  4. Won't work. I'm sure that companies banding together to discourage lawsuits of any kind will be looked at by our benevolent government and outlawed.

    1. So you're saying that it falls under the same taboo as jury nullification.

  5. They were only seven men, but they fought like seven hundred!

    That film brings back memories. Saw that at the drive in, me and all my little bratly friends, in the ol station wagon with paneling on the side. Man, I'm old...

    1. Yes. Yes you are.

      1. And they are always asking why there are no old libertarians... no wait, that was female libertarians, never mind... memory failing...

        1. because we eat them when we realize we spent our food money to pay for the roadzz!

  6. OT, but did the proglodytes ever finally get enough petition signatures to try Ted Cruz for sedition or/and treason? Or are they too busy trying to sugarcoat the Obamacare disaster?

    1. They're too busy trying to get Rand Paul's degrees revoked now.

      1. Well, I heard that he's one of them plagiarizers, and that's worse than Hitler, man!

  7. ''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.''

    Read as: "I'm too much of a pussy to ignore these thieving motherfuckers by myself, so please Almighty Collective, save me!"

  8. It doesn't need contingency, if I'm reading this right. That was but one facet. the other is that someone could crowd-source their legal fund with co-defendants, basically. This would require they all pay $x to the legal fund.

    However, could a potential unintended consequence be merely that a large enough group could get together to fight legit copyright and patent claims by doing what trolls currently do, but in reverse? Could one group so large and dedicated nullify (in effect) a patent by making it too expensive to defend?

    1. Defense can't get contingency. There's no upside for the lawyers. Plaintiff can if the lawyers think that they can inconvenience the defendants sufficiently.

    2. IOW, I can sue for no cost to myself. I cannot defend at no cost, even if crowdsourced. That's the fundamental asymmetry that's not addressed.

      Loser pays is never going to happen here.

      1. Sorry, I get it now.

  9. On top of which, loser pays is no good if the plaintiff is judgment-proof.

    1. like having liability insurance and getting hit by an uninsured motorist with a 1990 cavalier and no job?

  10. Sorry, Ron, but any idea Doctorow espouses is automatically suspect. Get somebody else who's not a complete douche (obviously, I mean besides you) to weigh in and I might reconsider.

    1. So you're saying the idea's viability is suspect based on the source and not it's own merit?

      1. I'm saying the idea may be viable, but if Doctorow is pushing it, probably not. I also don't spend much time considering Dianne Feinstein's policy proposals, and for much the same reasons.

        If it really is a good idea, somebody other than Doctorow will weigh in on it, and I'll consider it then. But as a single data point, Doctorow means "bad idea".

    2. I think Doctorow is fairly good on EFF lobbied matters (which this is). I dislike him strongly because of the fact that he doesn't apply all of those principles outside of the electronic/tech sphere. He appears to believe that oppression is complete okay as long as electronics technology isn't used to do it.

      1. I was done with him after he proposed regulating Google as a public utility. Between that and his endless idiocy about copyright, I've come to the conclusion he's a moron who thinks no farther than required to justify his personal preferences.

        1. You're probably right. I'm trying to be a big-tent guy with the EFF, but it is damn hard.

  11. "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."

    Way to friggin long.

    More reasonable would be 25 years or 10 years past the death of the author, whichever comes first.

    There is no one alive who can argue that copyright limitations like this would given AMPLE protection for creators.

    1. R: I would be happy to go with that too.

    2. Why does it need to be anytime past the death of the author? If the whole idea is to incentivize innovation, what use is a copyright to the author after death?

      1. Not that I agree with IP at all, but the argument would be to leave it as an inheritable asset to the heirs.

    3. How about 48 hours? I could live with that.

      1. I guess you enjoy playing snake on Linux, eh?

  12. Doctorow misses the biggest problem with the proposal--it probably violates antitrust law. He's asking companies with market power in an industry to agree to action in concert to refuse to deal with patent trolls. Take the phrase "patent troll" out of it and the problem seems obvious--"We need to create an agreement whereby companies can sign on to an agreement that if 50% or more of the market signs up, companies in the agreement will refuse to deal with suppliers charging more than X dollars for part P."

    Aside from that, what happens when companies sign up for one of these Kickstarters and lose?? Contrary to popular belief, patent trolls aren't always trolling with complete loser patents, and even those complete loser patents sometimes win. I recently worked on the defendant side of a troll case where the patent was utterly ridiculous, and should never have been granted...and the troll had just won an 8 figure jury verdict against another defendant with worse lawyers.

    1. dude. anti trust law is completely ex post facto anyways. if the other side gets USAG's in their pocket, then ya, you can get screwed by it. But there is no reason whatsoever to let it influence your actions before the fact.

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