2012 Articles

You Can’t Go Home Again: The Righthaven Cases and Copyright Trolling on the Internet

Polonsky, Ian

Part I of this Note traces the ideological origins of Righthaven from trolling practices in a sister area of intellectual property law, patent law, to analogous practices in copyright. Part II examines the particular forms of trolling that Righthaven employed to protect newspaper articles and the court system’s reaction to the company’s practices. Part III argues that the Righthaven decisions may have won the battle against one copyright trolling campaign but leave unresolved important issues of jurisdiction, the scope of fair use exemptions to copyright law on the Internet and the future of the newspaper industry in an increasingly competitive digital marketplace. The Righthaven cases might have brought some much needed clarity to a host of important legal and policy questions, but the courts’ swift and punitive rebuke of a particularly abusive troll amounted to a missed opportunity for development of the law. Ultimately, the failure of the judiciary to provide much needed guidance is two-fold: copyright holders and potential infringers are left with little guidance as to what forms of use of copyrighted material on the Internet are appropriate, and the rationale behind maintaining certain copyright enforcement regimes and decrying others is left to critical rather than judicial interpretation.