COPYRIGHT TROLLING – WHEN A COPYRIGHT OWNER IS RIGHT AND IT IS NOT AT THE SAME TIME

Copyright trolling is a phenomenon which reprehensibility is more and more often noticed by courts and more and more quickly identified by people who are “trolled”, thanks to the possibility of quick information exchange via social networks such as Facebook or Instagram. It turns out that the public knows much about copyright and is willing to comment on the behavior of both copyright infringers and authors of protected works.

But what is this copyright trolling really? Who is trolling whom and is it legal?

DEFINITION OF COPYRIGHT TROLLING

As with most new phenomena, no official definition is yet available. Representatives of science and the judiciary describe this phenomenon as a situation in which a person who owns the copyright to a specific work protects its rights in a harmful, intimidating way and is aimed rather at gaining inadequately high profits from someone’s minor infringement, than at the actual protection of the rights.

Thus, a person who is committing copyright trolling:

• • Owns the copyright to the work
  • Is a person whose copyright has been infringed
  • Directs claims for damages to the person who infringed their copyright
  • The person’s demands are inadequate for the nature of the violation
  • A person who owns a copyright is actively looking for similar infringements of his rights and massively sends its claims to other infringers

In the last judgment, the Court of Appeal in Warsaw (judgment of February 21, 2022, file no. VI ACa 279/21) examined the issue of copyright trolling and concluded that the copyright troll behaves as if he was “waiting for someone to use it unknowingly”. What is important, infringement of copyright is completely objective and binary. The fact of the infringement itself is important, and not the knowledge that someone has copyright to the work. So if you find a graphic on the Internet and you do not see any information about the creator and the fact that the copyright is reserved, it does not mean that you can use the graphic. If the creator discovers that you have used his graphics, he may still demand that you remove it and repair the damage (e.g. in the form of payment of a specific amount of remuneration).

However, in the case of copyright trolling, it is also important who are the people to whom the creator sends out mass requests regarding copyright. These people are usually:

• • Unaware that they have infringed someone else’s copyright
  • They did not make any profit on this account
  • They are forced by the creator to conclude settlements and pay high damages
  • They are threatened with criminal liability for copyright infringement
  • They are obliged to maintain confidentiality as to the content and the fact of the settlement agreement

IS COPYRIGHT TROLLING LEGAL?

Contrary to the lawful protection of copyright against infringement, copyright trolling is an abuse of a subjective right and does not enjoy legal protection. However, just raising this argument in court (if the author – copyright troll decides to sue us for compensation) is not enough. It will also be necessary to prove that the creator’s activity is contrary to the principles of social coexistence or to the socio-economic purpose of the law.

How to prove it? Your lawyer will need any printouts and screenshots of the correspondence between you and the copyright troll. We are talking about messages on Messenger, Instagram, posts placed on social networks by the copyright troll, messages and posts from other people, which were flooded with requests for payment by the copyright troll.

Moreover, copyright trolling can be viewed as an act of unfair competition. In most cases, authors are also entrepreneurs, and the works they create were created in connection with their business activities. Thus, it is possible to argue that the copyright troll has committed an act of unfair competition, not provided directly in the provisions of the Act on Combating Unfair Competition. Such an act would be considered under the conditions of Art. 3 sec. 1 ACK, i.e. the court would examine whether the copyright troll committed the following actions:

• • contrary to morality
  • infringing the interests of another entrepreneur or customer.

HOW TO NOT BECOME A COPYRIGHT TROLL BY ACCIDENT?

Since this is a relatively new phenomenon and more and more discussed by lawyers and creators, it is possible that the accusation of being a troll will be increasingly raised, and the consequences for this type of behavior will be drawn. Therefore, it is especially important for the creators to be aware of the existence of this phenomenon so that they do not become such a troll unwillingly.

Creators often adopt a strategy of claiming absurdly high amounts of damages so that, even after negotiating with the stronger infringer, the remaining amount of damages is still acceptable for them. On the one hand, such behavior is understandable, on the other hand, if the amounts are actually detached from the action of the case and are repetitive in nature (i.e. they are directed to many infringers at the same time), they can be classified as copyright trolling.

Therefore, in order not to be exposed to the charge of copyright trolling, remember the creator to:

• • claim the amount of compensation commensurate with the breach (the value of the remuneration that you would actually get for a license for a specific work)
  • do not intimidate with criminal liability (you are entitled to legal protection regardless of whether you inform the other party about it or not, if you want to take advantage of legal protection before the court, just go to a legal advisor specializing in copyright law)
  • not to send mass amounts of letters to the same person (one or two calls for cessation of violations should be enough, it is important to give the other party an adequate deadline to fulfill our requests or reply to the letter, if these several official letters / e-mails / messages on Messenger do not work consider outsourcing this case to a lawyer)