As many readers have probably heard, Barney the Dinosaur has been crushed by the EFF Free Speech Comet. As reported in the article, the law firm representing Lyons Partnership (which owns the Barney copyrights and trademarks) embarked on a vigorous, extended campaign of sending cease and desist letters to thousands of people using Barney's image online to express their less than complimentary feelings about said purple dinosaur. In particular, they continued to harrass Steve Frenkel for his Source of All Evil website. Only when EFF, on behalf of Frenkel, sued Lyons did Lyons ultimately agree to stop.
Under the terms of the settlement, Lyons pays a token $5K and, most importantly, promises to never again threaten to sue Frenkel for anything on his website as it existed on the day EFF filed the lawsuit (back in August 2006). So while Lyons could sue if Frenkel put up something new that was genuinely infringing, they have effectively promised to leave Frenkel alone and not come back. The CNET article linked to above anticipates that, although the settlement applies only to Frenkel, Lyons will probably stop its aggressive tactics against others as well.
Once again, Barney plays a valuable educational role. And today's lesson is inspired by The Chicago School: “Where the Market Is Our Religion, and Economics Explains Everything.”
A critical problem in the existing copyright and trademark enforcement scheme is that it permits rights holders to engage in harrasment at little cost. By contrast, Tom Forsyth of “Barbie in a Blender” fame risked $2 million to defend his free speech rights. Although he ultimately won court costs and attorney's fees, such victories are exceedingly rare. Indeed, Forsyth had to appeal a denial of his request for attorney's fees to the Ninth Circuit Court of Appeals.
Anyone who has had Econ 101 knows what happens when it costs me relatively little to impose large costs on someone I don't like. We've seen how “patent trolls” have become the bane of small businesses by extorting “license fees” neatly calculated to be just enough less expensive than litigating to make paying the fee the economical thing to do. When it costs me little to harass you I do it, and you pay for it. This is, as we like to say, not a positive outcome for the target of the harrasment or for society as a whole.
But Barney has once again shown us the way by example. If it gets too expensive for companies to harass folks, they stop. So while I hate you, 'cause you parody me, I care much more about money. If I risk big bucks when I frivolously sue, I won't try to bother you.
The usual counter argument is that we don't want to discourage people from bringing real cases or novel causes of action that are justified. It is not hard to hypothesize how the threat of legal fees might discourage an individual creator from taking on megacorp when megacorp has stolen individual creator's idea. But how many such cases are succesful under the current system? Is it really so impossible to devise a suitable disincentive for frivolous harassment by copyright and trademark holders while allowing people to enforce their legitimate rights that we just shouldn't bother to try?
I think that if the next Congress put its mind to it, it could come up with some good solutions to curb patent trolls, copyright trolls and tradmeark trolls (collectively “IP trolls”). Allow me to suggest that we begin work on a new piece of draft legislation and urge members of Congress to support it. I call this proposed legislation “The Anti-IP Troll Free Speech Protection and Competition Enhancement Act” (“Anti-IP Troll Act” for short).
What would go into the Anti-IP Troll Act? Perhaps we should take a page out of the Anti-Cybersquating Protection Act (ACPA), which allows a court to consider as evidence of “cybersquatting” whether a registrant has registered multiple names and the general circumstances of their conduct. We could allow a court to consider, for example, whether a rights holder has a history of indiscriminat use of “cease & desist” letters and thus qualifies as an IP troll. Or perhaps we should create a class action that would allow thousands of individuals to join together to sue for statory damages and injunctive relief against IP trolls.
Any one of these proposals has its problems. But as Forsyth and Frenkel and thousands of other speakers silenced by harassment from rights holders can attest, the current system also has huge costs and huge problems. I'm inclined to try to work on solutions to the real existing problems, rather than let fear of hypothetical future problems lock us in to the status quo.