STOP Copyright Trolls! The Supreme Court finally takes up the burning issue!

The problem of copyright trolls could get worse if rights holders can claim damages beyond the three-year statute of limitations, the Electronic Frontier Foundation (EFF) has warned the US Supreme Court. The Supreme Court should instead strengthen judicial safeguards to ensure that trolls stay under their bridge.

Over the past few years, we've covered dozens of copyright troll cases against tens of thousands of alleged copyright infringers.

Our coverage focuses mainly on piracy-related cases, but there are other variants too. For example, organizations that target blogs and other websites for using photos without permission.

The definition of the term "copyright troll" is fluid. In the file-sharing space, it generally refers to parties who accuse large numbers of people of copyright infringement, who are then threatened with lawsuits and substantial damages. Targets are encouraged to pay settlements to resolve these legal issues.

The phenomenon has been going on for over a decade, and although the most serious examples have disappeared, the business model is still active today. According to an amicus brief filed with the Supreme Court last week, the problem could get worse.

Watch out for copyright trolls

These words of warning come from the Electronic Frontier Foundation (EFF), the Authors Alliance, the American Library Association and the Association of Research Libraries. They intervened in Warner Chappell Music v. Nealy, a music copyright case that has nothing to do with "copyright trolling".

The case in question concerns the period during which rights holders can obtain damages for copyright infringement, known as the "damages discovery rule".

Under U.S. copyright law, there is a three-year statute of limitations on filing claims. This period begins after the rights holder has "discovered" the infringement. Courts are divided on whether this three-year limitation also applies to damages that can be claimed, or whether the "accrual of damages" can go back further.

Don't feed the trolls

According to the amicus brief, an extended accrual period could give copyright trolls more ammunition. It would allow them to claim that they have just discovered infringements that took place many years ago, enabling them to claim damages beyond three years.

"The discovery accrual rule as interpreted by the Eleventh Circuit in this case [...] encourages copyright trolling. The ability to recover damages for infringements that took place a very long time ago, provided the suit is brought within three years of discovery, expands the possibilities for seeking nuisance settlements against many internet users.

"The problem of copyright trolling shows why the Court should rule that claims of copyright infringement arise at the time of the infringement itself, with a three-year statute of limitations from that date," the groups add.

Torrents, photos and more

The filing provides a detailed overview of the copyright trolling landscape. This includes the many lawsuits filed against BitTorrent users, who are targeted for sharing pirated movies. These lawsuits are usually settled out of court or dropped, and rarely go to trial.

While this practice is still common today, the courts have limited its scope; in some jurisdictions, trolls are no longer welcome.

"Many courts have dismissed these suits on procedural grounds (such as improper joinder and lack of personal jurisdiction), and courts have recognized the impropriety of using the judicial process solely to obtain quick settlements," the brief notes.

In the BitTorrent business, rights holders have to actively monitor copyright infringement, so lawsuits are generally not filed after many years. For image-related trolling, the situation is different.

Reverse image search tools enable photographers and their lawyers to identify content published long ago. They can then go after alleged infringers years later, claiming damages.

"These requests frequently concern images published more than three years ago. These publications cause little or no financial harm to rights holders, no significant gain to website authors, and would not otherwise be the subject of litigation," reads the brief.

Time-limited damage

Amici fear that if rights holders can claim damages for much longer periods, this will only exacerbate the troll problem. In a recent blog post, EFF details its concerns, asking the Supreme Court to take trolls into account.

Copyright disputes take many forms, but EFF stress that courts should ensure that judicial safeguards are in place to prevent abuse. They note that limiting the period of damages is essential to avoid excessive trolling.

"EFF filed its brief in this case to ask the Supreme Court to extend these judicial guarantees, ruling that damages for copyright infringement can only be recovered for acts committed three years before the complaint was filed.

"An indefinite statute of limitations would add fuel to the copyright troll fire and risk encouraging new trolls to emerge from under the metaphorical bridge," EFF concludes.

A full copy of the amicus brief, filed by EFF, the Authors Alliance, the American Library Association and the Association of Research Libraries, is available here (pdf).