Troll Tracker [Why People Hate Lawyers]
Opening Statements, from the December 2007 IP Law & Business (a Law.com versino of the article is online here), relays some interesting stories about the battle between patent attorney Ray Niro and the anonymous blogger "Troll Tracker". It's almost amusing, while at the same time a sad commentary on our perverted legal and property rights system.
[Update: Ray Niro Offers $5,000 Bounty For Information On My Identity; As The Troll Turns; Follow-Up on Bounty Post.]
[Update: Raymond Niro Responds to Patent Troll Tracker: this is a creepy response. Niro writes:
1. I do not want to find out the name of the Troll Tracker in order to sue for patent infringement; rather, I want to know his name to expose him, so that he can’t hide behind anonymity and may ultimately be held accountable for what he says.3. Anyone that operates a website runs the risk of infringing Global’s patent if (as we believe) that patent covers the manner in which JPEG images are displayed on a website. Troll Tracker is no exception.
4. As for silencing critics, I doubt that is possible. But anyone should be held responsible for what they say and have the courage to express their views by putting their names on whatever it is they publish.
In addition, Niro mentioned that he has raised the reward to $10,000 for information leading to the identity of the Troll Tracker. “It seems to me if you really have anything truthful to say, you are not afraid of identifying yourself,” Niro stated.
First, a little background. The patent firm Niro, Scavone is a well-known patent plaintiffs firm (see Quick Draw--requires registration). As these guys are sometimes accused of being "patent trolls," they naturally defend "trolling" (while disliking the label). One of Niro, Scavone's attorneys, Joseph Hosteny, has written in defense of so-called "patent trolls," as I note in Patent Trolls and Empirical Thinking. I also note that most criticisms of patent trolls are confused ... but this doesn't mean there's nothing wrong with a system that permits trolling to arise.
Anyway, as the article reports, Niro won a $12.1 million jury verdict for his client Philip Jackson against an electronics company, for patent infringement. The court later reduced the award to $2.65 million. Jackson then sued Niro for malpractice. Niro's counterclaim? That the patent he'd helped Jackson sue others for was invalid -- that is, should not have been granted! Wow, what chutzpah.
Meanwhile, Niro is in a spat with Troll Tracker, a blog by anonymous blogger (apparently an experienced patent attorney) which covers various patent troll patent lawsuit filings. Niro doesn't liked being called a Troll, as Troll Tracker often does. So Niro threatens to sue Troll Tracker, for infringing U.S. Pat. No. 5,253,341. What was Troll Tracker's terrible action of "infringement"? Including a JPEG image on his website. Yep. That's what Niro claims to "own" by virtue of this patent--the right to put JPEG pictures on websites. Yikes! I guess Drudge Report and Craigs List are safe, though I'm not sure about anyone else.
Troll Tracker has also brought the spotlight onto another of Niro's IP suits: in this case, Niro, on behalf of a client, sued Google for patent infringement, and Troll Tracker publicized the fact that the patent here was owned by Scott Harris, a partner at law firm Fish & Richardson--and Google was a F&R client! Ha! Harris was apparently asked to resign after this came to light. (Harris's latest reply.) So you can see why Niro no likey Troll Tracker, and has threatened to sue him (?) for, um, putting JPEGs on his website.
But too bad, so sad for Niro--Troll Tracker is anonymous. So he doesn't know who to sue. Therefore, the crafty Niro has offered to pay a $5000 bounty for anyone who can tell him who Troll Tracker is. I'll give him a little help--it ain't me! Anyway, here we have yet another example of how IP violates other rights, like the right to free speech. Niro tried to do this before--he used the same patent against a porn site, and when the outspoken Greg Aharonian called the patent "crap," Niro sued him too.
What was it Ayn Rand said? Ah, yes: “patents are the heart and core of property rights." Not your proudest moment, Miss Rand.
Comments (10)
TokyoTom
Stephan, I appreciate and enjoy your interesting insights into the world of intellectual property.
However, as a lawyer, I suspect you understand that Niro's efforts to track down Troll Tracker have nothing at all to do with "the right to free speech" (which is a check on government, and does not relate to interpersonal speech).
Published: December 3, 2007 8:24 PM
TGGP
It has everything to do with free speech. A private citizen enlisting the goons of the state on his behalf is no different from a government actor siccing them on someone for his/her/its own reasons. Lawsuits between private individuals have resulted in the sorry situation in Canada where you can't even speak out against hate-crime laws. If you wanted to say that its a separate issue from the first amendment, radical libertarian though I may be, I would be open to that approach.
Published: December 3, 2007 9:16 PM
TokyoTom
TGGP, sounds like you oppose any involvement by the state to provide a forum for actions by individuals to protect their rights under common law.
While there may be good reasons to be concerned about the liberties at risk when the government is only tangentially involved (and the Canadian case seems to have gone disturbingly overboard - in favor of a government employee in a supposedly purely private libel action), clearly (i) the common law of tort establishes private rights of action for slander and libel, (ii) our Founders anticipated that state and federal courts would provide fora for hearing such actions, and (iii) accordingly, the right of free speech that 1st amendment protects against government is not implicated by tort actions by individuals.
Stephan surely understands this.
Published: December 3, 2007 10:53 PM
Gold Standard Tom
Stephan seems to conflate the abuse of intellectual property with its proper implementation. All rights are interdepenent, they do not infringe on each other. Dear stephan, this is not YOUR proudest moment.
Published: December 4, 2007 7:31 AM
TGGP
TGGP, sounds like you oppose any involvement by the state to provide a forum for actions by individuals to protect their rights under common law.
A right to restrict the free speech of others is not a right I endorse. Ward Churchill's claim that the Ninth Amendment gives native americans the right to stop Columbus Day parades is an example.
the common law of tort establishes private rights of action for slander and libel
Then nuts to the common law.
our Founders anticipated that state and federal courts would provide fora for hearing such actions
They certainly weren't perfect.
accordingly, the right of free speech that 1st amendment protects against government is not implicated by tort actions by individuals.
The first amendment only restricts Congress from passing laws, but the "right to free speech" is broader in my book.
Published: December 4, 2007 12:00 PM
Jean Paul
There is no "proper implementation" of 'intellectual property'.
IP contradicts self ownership. Self ownership necessarily wins. The only allowable approximation for IP is IP-by-contract, a very distant approximation not remotely worthy of the term 'property'.
IP, as it is understood, cannot rightly exist, in ANY implementation.
Published: December 4, 2007 8:15 PM
Greg
There's still something that's bugging me. I can see how ideas aren't property. I see how all the arguments for IP break down and I'm convinced that the current IP law isn't justified.
The red flag is how arbitrary the rules are.
But I can't rid myself of the feeling that there's still something there. I was debating recently about atheism and the subject of universal truth came up. As an example I came up with honesty. You may or may not agree with my example but the concept of universal truth is making me think that we're using the wrong words when we say Intellectual Property. Is it really property or something else.
If I wrote a novel and someone took the file and copied it and distributed it I would FEEL violated. I would feel something similar if someone stole my car. I say similar because I'll have to admit the feeling is not exactly the same. I think because I know I can replace the car and put the issue to rest. But my manuscript theft will never end.
We probably shouldn't make laws based on my feelings but I can't help thinking that there must be some truth here that we're missing. Someone help me see what I'm struggling with here.
Also, I am aware of an interesting copyright case where a church that distributed literature for free made major doctrinal changes. All the literature was rewritten because the old literature was found to be riddled with error.
A splinter group that didn't want any changes broke away and copied all the old literature and began to distribute it once again for free.
Since the literature was copyrighted and the original church didn't want the original literature distributed they sued.
The interesting thing was that the splinter group argued that since the literature is free the original church couldn't show damages.
I don't recall the original church's argument or the outcome but I'm pretty sure it was in favor of the original church.
Published: December 5, 2007 3:40 PM
Stephan Kinsella
Greg,
"But I can't rid myself of the feeling that there's still something there. ... If I wrote a novel and someone took the file and copied it and distributed it I would FEEL violated. I would feel something similar if someone stole my car. I say similar because I'll have to admit the feeling is not exactly the same. I think because I know I can replace the car and put the issue to rest. But my manuscript theft will never end.
"We probably shouldn't make laws based on my feelings but I can't help thinking that there must be some truth here that we're missing. Someone help me see what I'm struggling with here."
How about this. Consider if someone insults you, or your mom. You might "feel" violated; but of course, merely insulting people is not a crime. Also: suppose you build a drive-in movie theater, and eventually you see that a bunch of free-riders just sit on the hill across the street and watch the movie for free--they can see it and hear it. You might feel violated too. Why? Because you didn't bother to think of ways or incur the costs needed to *exclude* them. Most businesses have costs of exclusion. You have to put locks on your doors; hire guards; etc. If you give something away for free, you ought to expect people will take it. It's for this reason that drive in movie theaters adopted the little speakers by each car, so that outsiders can't free ride. It costs something to do this, but it's the only way to stop free riding. So they do it. Or, you could build a large building and have an indoors theater. This costs more too. And if you don't sell tickets and have a system of preventing people from entering unless they buy a ticket, then soon you'll have a theater full of free riders--so here, too, you have to incur costs of excluding, if you want to keep freeriders out and make a profit.
So in the case of the novel, where you "feel" violated because someone else copies it, it's because you didn't incur the necessary costs of excluding them from having it. For example if you just loaned to a friend but didn't take the time to make them sign a non-disclosure agreement, or encrypt the file first, etc., then this is the reason you are getting burned and feeling violated. You just need to be aware of the risks of people free-riding and decide whether it's worth it or not to come up with some means of exclusion.
See note 67 of my Against IP for more on this..
Published: December 5, 2007 4:38 PM
TGGP
Speaking of exclusion Stephan, what do you think of this on guard labor? Struck me as a bit marxist ("reserve army of the unemployed" was coined by Karl, and not the cool one) but still interesting.
Published: December 5, 2007 7:22 PM
nick gray
Q. Why do people instantly hate lawyers?
A. It saves time!
Do we really need a reason?
Published: December 7, 2007 12:27 AM