November 12, 2012

The Nuclear Option: Ending Copyright and Patent Lawsuit Abuse

I don't need to detail here the putrid state of lawsuit abuse related to intellectual property enforcement, especially here in the U.S. No matter where we turn, we see that so-called "rights holders" have turned the courts into what often amount to extortionist profit centers, with innocent victims steamrolled into oblivion.

Organizations like the MPAA and RIAA use what amount to shakedown tactics to intimidate their targets with threats of enormous fines, often over accused transgressions that by any rational measure were minor -- if existing at all.

Frequently people who are utterly blameless and have been so threatened nonetheless -- elderly women in nursing homes, young children, and so on -- have been coerced into paying off these and other organizations via an enforcement regime that seems to share most of its sensibilities with the master/serf legal constructs of the dark ages.

Patent trolls wield patents collected like commodities in a manner reminiscent of Chicago gangsters of old, demanding payments "if ya' know what's good for ya'!" -- costing consumers billions of dollars in the process, and suppressing the creation of untold innovations.

These reprehensible behaviors contaminate our lives even more broadly, even when lawsuits are not directly (at least immediately) involved.

For example, they are a prime driver behind situations such as those I described recently in It's Time to Fix YouTube's Biased Copyright System!

And while I do feel that there are steps Google could take unilaterally to improve this situation, I also am very cognizant of the fact that Google's legal range of action is restricted by rampant DMCA takedown filing abuses, and that their current methodology is an attempt to walk the resulting tightrope. After all, Google must indeed obey the laws, just like the rest of us.

But the damage being done by abusers of patent and copyright law goes far deeper.

We're now seeing vastly increased intellectual property demands for search engines' results to be removed, websites shuttered, and all manner of other "information censorship" schemes being deployed -- and even beyond IP issues per se, we have the nightmarish EU "right to be forgotten" and its ilk.

We've previously talked about all these problems.

Now, it's time to discuss solutions.

And frankly, "little stick solutions" aren't going to fly.

The level of abuse is now so awful, that we're going to have to bring out the really big guns. In fact, we need to go way beyond artillery.

We need to consider the nuclear option.

When we look across the universe of the problems noted above, there is an obvious and dramatic common thread that runs through them all.

The costs -- in time, money, and other resources -- required to file takedowns, lawsuits, and other intellectual property "enforcement" actions is usually relatively minimal. In some cases, it is zero.

And in most cases, the penalty for mistargeting, for harassing and terrorizing innocent parties with protection racket tactics, is similarly tiny, often nil.

So the incentive exists to spray out patent and copyright attacks in all directions, machine-gunning pretty much everyone and everything (especially parties you suspect would rather pay up than fight, whether innocent or not).

It's time to add some serious fissionable friction to this process.

The concept is simple enough. We need to make abuse of the patent and copyright enforcement system so painful that even the most dedicated corporate executive masochist will think twice before pulling the trigger on their attacks.

Threats and the filing of takedowns, lawsuits, and other actions in the absence of strong and verifiable evidence of significant wrongdoing, not just haphazard shotgun barrages based on mere suspicion and wishful thinking, must trigger significant financial penalties and perhaps other serious sanctions as well.

How about a fine of a million dollars per false attack? Or 1% of gross earnings? And perhaps a five year prohibition against more filings?

If these sound draconian, or unrealistic, that's OK -- consider these to be the outer bounds starting points for discussion.

The bottom line is that we need to make it seriously expensive for firms or other parties to falsely or inappropriately sue, threaten, or otherwise harass over perceived intellectual property violations. If these entities make an honest mistake as determined by third parties (such as the courts), that can be a valid excuse in those specific cases.

But no more aerial bombing of the Internet community on a "shoot first and don't even bother to ask questions later" basis.

A similar solution could be applicable to patent abuse. Make it incredibly expensive to knowingly obtain patents or file lawsuits (or engage in "pay me off" shakedowns) when prior art exists and the purpose of the patent is to suppress innovation, as demonstrated by how the holder of the patent actually behaves.

Patent trolls, this means you.

And again, once the appropriate laws are in place, courts or other designated third parties can make the specific determinations on a case by case basis.

Details of these and alternative approaches aside, the key takeaway from this discussion should be that we need to restore a sense of balance to the entire intellectual property arena.

It must be sufficiently expensive to abuse the system through careless, poorly researched, rogue, or simply false accusations, to seriously get the attention not only of associated corporate executives, but of their shareholders as well.

We need to get started on this right now.

The time for torches and pitchforks is already past.

The nukes await.



Posted by Lauren at November 12, 2012 11:10 AM | Permalink
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