Most commonly one hears the term in the context of the phrase "copyright troll," but what is the essence of a legal "troll"?
Another term sometimes used in place of "copyright troll" or "patent troll" in order to be less pejorative is "non-practising entity"1 (moreso in the patent context). These terms refer to a family of characteristics, not always present in every particular instance. These are not well-defined legal concepts but are used colloquially (mostly in academia and journalism) to describe a kind of behaviour in the legal system. Some legal opinions have used the term "troll".2 And some statutes even aim to assist defendants subject to claims from trolls.3
- they do not licence or produce the material themself
- they adopt aggressive, vexatious, and frivolous litigation tactics to attempt to get high value settlements
- they initiate claims or demands beyond the scope of their rights or despite fair use defences
- litigation awards and settlements are a significant part of their revenue
Because these terms (copyright troll, patent troll, troll, non-practising entity) do not have a precise meaning, good academic work that uses such a term will provide a definition of how they are using the term within their work.4
1. This is also somewhat imprecise, but by non-practising entity, this refers to entities that do not "practise the patent." This is an odd phrase, but to practise a patent means to actually use, make, or sell the patented invention or products incorporating the patented invention (as opposed to merely excluding others from doing so).
2. I haven't done my own independent research for this and am not providing a list of cases, but see footnote 17 of Brad Greenberg, "Copyright Trolls and Presumptively Fair Uses", 2014. It lists a few judicial opinions from the United States using the term, often in quotation marks. The opinions relate trollness to "costly and expansive discovery to need to oppose a fair use defence", that one party was not a troll because it "actually produced the [works] and did not merely acquire the copyright therein to enforce against infringers", that "copyright trolling" uses litigation "not to make the copyright owner whole but to provide a new revenue stream". There are likely many more examples.
3. See for example Washington State's Patent Troll Prevention Act. They use the term only in the short title because of its popular connotation. The term does not appear in the text of the statute. Instead, it prohibits what is considered "bad faith" assertions of patent infringement and includes a description in a preamble of what the legislature considers the nuisance to be.
4. Greenberg's operational definition is: "a copyright owner who: (1) acquires a copyright—either through purchase or act of authorship—for the primary purpose of pursuing past, present, or future infringement actions; (2) compensates authors or creates works with an eye to the litigation value of a work, not the commercial value; (3) lacks a good faith licensing program; and (4) uses the prospect of statutory damages and litigation expenses to extract quick settlements of often weak claims."
People like Richard P Liebowitz
Richard P Liebowitz was, until his indefinite disbarment in November 2021, responsible for "a growing body of law in this [Southern District of New York] devoted to the question of whether and when to impose sanctions on Mr. Liebowitz". At least Two Judges called him a "Copyright Troll" in official filings in at least 3 cases.
- Judge Lewis Kaplan quoted in November 2019 a colleague from the same court in an opinion in Sands v. Bauer Media Group USA LLC, S.D.N.Y, defining the concept
Indeed, another judge of this Court has referred to Mr. Liebowitz as a 'copyright troll' - one who is
'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. A copyright troll plays a numbers game in which it targets hundreds or thousands of defendants seeking quick settlements priced just low enough that it is less expensive for the defendant to pay the troll rather than defend the claim.'
Moreover, Mr. Liebowitz has been sanctioned, reprimanded, and advised to 'clean up [his] act' by other judges of this Court.
- Judge Denise Cote in late February 2018 in her opinion in Steeger v. JMS Cleaning Services cited another opinion that had come out days earlier:
[Plaintif] is represented by Richard Liebowitz, who has been labelled a copyright "troll." McDermott v. Monday Monday, LLC, 17cv9230(DLC), 2018 WL 1033240, at *3 n.4 (S.D.N.Y. Feb. 22, 2018).
- That case was also in front of Judge Denise Cote, so... well, she quoted herself, but it seems to be the earliest paper that officially alleges that he was a troll:
“Plaintiff's counsel, Richard Liebowitz, is a known copyright "troll," filing over 500 cases in this district alone in the past twenty-four months.” McDermott v. Monday Monday, LLC, 17cv9230(DLC), 8-9 (S.D.N.Y. Feb. 22, 2018)