Chapter 32: Copyright Trolling and the Policing of Intellectual Property in the Shadow of Law

This article explores the phenomenon of ‘copyright trolling’, which is the (il) legal practice often referred to as ‘speculative invoicing’ that deliberately upsets or embarrasses individuals to get them to pay for material they may or may not have downloaded illegally. It looks at the policing of digital copyright in the UK, US and Germany by exploring the legal practice of copyright trolling as well as some recent examples of litigation in those countries. More specifically, it asks the question as to what extent have some intellectual property lawyers been creatively and entrepreneurially seeking to use the threat of court or exposure to embarrass defendants into making payments. It will also ask whether or not this form of litigation has actually had the effect of policing copyright under the shadow of law? The article also contributes to the emerging criminological debate over organizational crime by providing an example of how organizational and professional corruption takes place as well as detailing the process of corruption. It illustrates an aspect of the criminalization of civil space by the private sector, in this case the brutal aim is to neutralize opposition and maximize income generation whilst protecting the income stream.

The first part will explore key trends in the changing business model of the music industry and outline the main issues and arguments relating to the debate over sharing music files. The second section outlines the case for file sharing. The third part looks at who the creative industries are in terms of creative assets and creative artists and at how networked technologies have changed the power relationships between the two. The fourth part contemplates what is being protected and the case against file sharing. In so doing, it evaluates what intellectual property rights are and what their purpose is. The fifth section examines the practice of speculative invoicing to ‘police’ illegal file sharing. The following part considers how speculative invoicing has turned into copyright trolling by exploring the case study of ACS: Law and also the US copyright trolling experience and seeks to draw some lessons from the UK and US experiences. The final part draws some conclusions.