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[ NNSquad ] The Nuclear Option: Ending Copyright and Patent Lawsuit Abuse

           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

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!":
http://j.mp/RdvygJ (Lauren's Blog).

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

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

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.


Lauren Weinstein (lauren@vortex.com): http://www.vortex.com/lauren 
Co-Founder: People For Internet Responsibility: http://www.pfir.org/pfir-info
 - Network Neutrality Squad: http://www.nnsquad.org 
 - PRIVACY Forum: http://www.vortex.com/privacy-info
 - Data Wisdom Explorers League: http://www.dwel.org
 - Global Coalition for Transparent Internet Performance: http://www.gctip.org
Member: ACM Committee on Computers and Public Policy
Lauren's Blog: http://lauren.vortex.com
Google+: http://vortex.com/g+lauren / Twitter: http://vortex.com/t-lauren 
Tel: +1 (818) 225-2800 / Skype: vortex.com
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