A Bug in Early Creative Commons Licenses Has Enabled a New Breed of Superpredator
Here’s a supreme irony: the Creative Commons licenses were invented to enable a culture of legally safe sharing, spurred by the legal terror campaign waged by the entertainment industry, led by a literal criminal predator who is now in prison for sex crimes.
But because of a small oversight in old versions of the licenses created 12 years ago, a new generation of legal predator has emerged to wage a new campaign of legal terror.
To make matters worse, this new kind of predator specifically targets people who operate in good faith, only using materials that they explicitly have been given permission to use.
What a mess.
Statutory Damages: A Tale of Moral Hazard
I’m talking about copyleft trolls. This is a phenomenon that’s been on my radar since 2019, when Metabrainz, a charitable nonprofit whose board I’ve volunteered on for more than 15 years, successfully defended itself against a $10,000 “speculative invoice” that we received from a guy who is widely considered to be a copyleft troll.
To understand how the copyleft troll scam goes, you first need to understand how copyright trolls operate.
Start with this: US copyright law provides for $150,000 in statutory damages for “wilful infringement.” If you violate someone else’s copyright and they can prove you knew you were breaking copyright law, they can hit you for up to $150,000, even if they can’t show that they’ve lost a dime in the process.
Enter the copyright troll, who uses the statutory damages system to engage in highly automated, mass-scale extortion.
To turn troll you need five things:
- A law degree;
- A client who can lay claim to some kind of copyrighted work that might be reproduced online;
- A search tool that can identify copyrighted works as they are posted online;
- An automated “speculative invoicing” tool that sends legal threats and demand letters to anyone the system identifies as having posted a copy of…