|
|
Over the last several decades, trial lawyers have found increasingly “creative” ways to use the legal system to enable themselves to cart off huge portions of legal settlements for themselves. Some of these high profile abuses made headline news, such as the class action exploitations of the 1990s. But actually being required to take a case to court does come with expense, and wanting to enhance their riches trial lawyers have found some new legal system weaknesses to exploit for less out of pocket expense.
Partnered with patent trolls (Few of the current definitions or usages of the term are helpful as many of them disparage some otherwise enterprising individuals or companies. That said, there are bad actors who bring, or threaten to bring, abusive, frivolous litigation that is designed to leach onto innovation and drain its value), trial lawyers, in those cases where the trial lawyer is not also the troll, are exploiting weaknesses in the patent system to enrich themselves while draining away value from creators and inventors.
The typical operation begins with an abusive demand letter, that is a written demand for the target to pay royalties for presumably violating a patent. Often such demands are frivolous, such as with the recent shake down letter objecting to restaurant menus being posted online, but the demand for cash is very real as is the threatening language. This process requires little in the way of cost or work, just a moment to change the name and address and drop the form letter in the mail. Because the demand is often kept relatively low, settlement is often thought a better financial option, especially for small businesses and sole proprietorships. The intent is the shakedown, not justice. To have a strong patent system that protects intellectual property, means that these abuses must be made to stop.
As Carrie Lukas with the Independent Women’s Forum has written, “This isn’t how things are supposed to work. And it isn’t just multibillion dollar companies that are harmed by legal abuses, but small businesses that are the least likely to be able to afford the payments much less a protracted legal battle. In fact, we all end up facing higher prices as a result of this economic drain on legitimate companies.
We need legislation to prevent this obvious abuse of the legal system. The good news is that there are proposals out there to make changes, such as requiring that lawsuits are filed in districts with some relationship to the issue at hand. That—along with other reforms to require that patent trolls are truthful in their communications with businesses and to facilitate the dismissal of frivolous cases—would be a much needed dose of common sense to our legal system. It would also take pressure off of legitimate companies and entrepreneurs trying to build businesses and create jobs, could bring down prices a bit for the rest of us, and make our system more just.”
Trial lawyers have chipped away at various pieces of our country in the past. Now, they are after innovation. The threat is real, especially when a troll is at their side.
Recently Sony Pictures became the most recent victim of hackers. This hack captured American attention in ways that many previous hacks had not despite the seriousness of each of them largely because of the trove of private embarrassing emails, sensitive employee information such as salary negotiations and results, and intellectual property being made public. Attention was further driven by scandalous, sensationalist headlines…repeatedly. Tinsel Town lives in a bubble, disconnected from the rest of the country, much like Washington, DC, so when something goes awry in these places the national schadenfreude is wide spread. In this case, things went wrong in both places.
While the attack on Sony, if not a traditional act of war, certainly goes well beyond some hackers on a lark. This should demand the serious attention of the public. That some blamed the victim or took advantage of the situation is shocking.
Those who blame the company for taking a wrong turn where national security is concerned by delaying the release of the “Interview” are baffling. Doesn’t national security responsibility rest on Capitol Hill and the White House rather than a movie studio? Would we blame a hostage taken by ISIS for placing our Navy Seals at risk? Regardless of what Sony does with its property it can hardly be accused of making a “mistake.” To the extent a mistake was made, it was that cybersecurity legislation was not made law, or even that Washington has not seemingly taken cybersecurity as seriously as it should as it is a very real very present threat to national security and to our individual liberty.
Others went so far as to try to create a side show to this international attack by spinning up a policy debate about copyright, referencing some stolen emails from Sony employees discussing the harm of ongoing copyright piracy. That Sony Pictures or that its trade association, the Motion Picture Association of America, are concerned about the harm of people stealing their property is hardly shocking. With tens of billions of dollars in direct economic harm at stake, that they may appeal to the government for greater protection of intellectual property via laws or law enforcement should catch absolutely no one by surprise.
These sorts antics distract from the very real issue at hand – that the Internet ecosystem is under attack and as such the entire ecosystem needs to respond, not be divided. True success in the digital world is achievable when all parties understand that they cannot stand on their own, that in fact an economically thriving digital ecosystem requires cooperation with an eye towards what is best for the broader ecosystem. The distributed nature of the Internet is a fundamental part of its design, and no one entity can be an island. Stakeholder cooperation is imperative for the success of all.
In fact, as the Pew Charitable Trust Internet and American Life Project a notable percentage of Americans have not yet adopted broadband, or have stopped using it, because they believe the benefits of use are outweighed by the risk or a lack of compelling uses. If the Internet becomes, or is perceived to have become, a mere tool to facilitate illegal activity whether copyright theft, property damage, financial fraud, drug sales, human trafficking or other things then all in the ecosystem from service providers to content producers to Internet companies lose.
Cyber security should be the focus. Trying to turn this most recent hack attack into some sort of Internet reality show episode is disturbing. To fixate on information gained in the hack seems a bit small, ignoring the warlike criminal behavior while attacking the victim over revealed competitive decisions problematic. All entities in the ecosystem must be proactive. Government, individuals and companies we must all be alert and focused. And when the ecosystem is attacked we all must focus on the attack not focus on attacking each other.
The Internet ecosystem just added a new tool to preserve the property of rights holders even while encouraging greater use of broadband. The Motion Picture Association has announced the launch of a new search engine called WheretoWatch.com.
As Variety has reported, “MPAA — upping efforts to help consumers find legal sources of content instead of pirating it — has rolled out WheretoWatch.com, an advertising-free entertainment search engine designed to point people to TV shows and movies from authorized sources. WheretoWatch.com includes info and links from providers including Netflix, Apple’s iTunes, Amazon.com and Hulu as well as smaller sites like SnagFilms and WolfeOnDemand. MPAA said it expects to expand its list of partners in the coming months.”
Great, but what does this have to do with public policy? Rather than relying on another years-long legislative battle, which may fail to reach any sort of resolution, the industry got to work creating a solution to help protect its property. This sort of industry self-help should be lauded and encouraged across the digital ecosystem.
More success will come as all parties understand that they must do their part and that an economically thriving digital ecosystem requires good faith cooperation, within the bounds of the law, with an eye towards what is best for the broader ecosystem. Less infringement combined with great legal choices available in many places for consumers is in the best interest of all.
|
Interact with us! Madery Bridge
Senior Advisors
|
