File-sharing litigation has continued to be a trend in 2015. This is in spite of the fact that such activities don’t produce any real tangible effects in overall market and file-sharing trends.
Over the last several years, many have questioned what results litigation produces. Many have pointed out that lawsuits against alleged file-sharers have had no real impact in the world of file-sharing. Conversely, low cost and free streaming services have arguably made the biggest dent on file-sharing activities.
As a result of this, many have suggested that litigation has little to nothing to do with sending a message to other file-sharers (or deterrence), and more to do with turning file-sharing litigation into a cash cow. that certainly would be consistent with the general observations on where litigation occurs in the first place. In countries where it is difficult to extract hundreds of thousands of dollars, litigation just doesn’t happen that often. One example of this is Canada where, with the exception of a few cases, litigation just isn’t a trend. Meanwhile, in countries where statutory damages for non-commercial infringement, litigation is quite rampant where the tactics have been likened to extortion and racketeering according to some critics. One example is in the US where new lawsuits seem to crop up at least every other week still.
Lex Machina is has been tracking the trends in so-called intellectual property cases. While patent and trademark cases are up, the trend for file-sharing in 2015 much more mixed:
Lex Machina divides copyright litigation in the U.S. district courts into two sub-types: file sharing cases (those having John Doe or anonymous defendants and accusations based on file sharing technology such as BitTorrent), and other, more traditional cases. As explained in Lex Machina’s Copyright Report, these cases follow very different dynamics.
Q4 of 2015 saw a decrease in both filesharing cases and other copyright cases.
File sharing cases continued the year-long trend of decline, with 533 cases filed in Q4 – the first time since Q3 of 2014 that there have been fewer file sharing cases than other copyright cases.
There was a notable spike in the first quarter of 2015. We did observe many pornography related litigation at the beginning of 2015 in the US court system. IPWatchdog confirmed that trend:
A decrease in copyright infringement cases underscored a very interesting trend in that area of intellectual property enforcement. Copyright infringement cases related to file sharing technologies rose from 70 in the first quarter of 2011 up to a high point of 905 such cases filed in the first quarter of 2015, almost doubling the number of other copyright infringement cases filed in that quarter (514). However, those totals declined sharply by the end of 2015 and the 533 file sharing cases filed in that year’s fourth quarter was outstripped by the 535 other copyright infringement cases filed for the first time since the third quarter of 2014.
We were given even more insight into the unusual activity in copyright infringement cases thanks to a copyright litigation report issued by Lex Machina last August. As this report clearly indicates, the vast majority of file sharing cases have been filed by Malibu Media LLC, which has been the plaintiff in 4,332 copyright infringement cases related to file sharing since 2009; the next highest number of file sharing cases filed by one firm in that time is a paltry 274. Interesting to note is the fact that Malibu Media and other firms bringing forward file sharing cases are producers of adult media and erotic videos. This would explain why defendants are more willing to settle file sharing cases before they go to court; since 2009, file sharing cases have seen a 90.6 percent settlement rate, much higher than the 64.1 percent settlement rate seen over that time period for every other type of copyright infringement suit.
Of course, while the trend of file-sharing litigation has dropped in 2015, it is also easy to note that the overall trend from 2011 shows a gradual increase in cases. At best, the cases may have actually just leveled out in 2015. What would be interesting to see is if 2016 produces a steady amount of litigation as opposed to an increase as was the overall trend throughout 2012 to 2014.