Abusive copyright litigation, proposed solutions, and the implications for Creative Commons licenses

Abstract

US Copyright Law empowers rights holders to enforce their rights and to defend the market value of their intellectual property through litigation. So-called copyright trolls are rights holders who exploit the law and the court system by pursuing allegations of infringement primarily to generate revenue through court-awarded statutory damages or settlements outside of court. Such abusive litigation undermines the intention of the US Constitution's Patent and Copyright Clause as well as the public's respect for copyright. Yet legislative reform intended to deter abuse may impact those offering their work under Creative Commons (CC) licenses when they seek to enforce their rights. This article presents the ways in which legal scholars define abusive copyright litigation and their recommendations for thwarting it. Then, using examples from actual court cases, the article suggests potential implications of these recommendations for the enforcement of CC licenses.