Copyright trolling refers to the practice of acquiring rights of economical exploitation on protected works for the sole purpose of claiming compensation for damages from those who infringe such rights.
The place of choice for this activity can only be the Internet and, in particular, peer-to-peer networks which, as peer networks, guarantee users the sharing of multimedia material. These, in fact, due to their decentralized nature, are increasingly becoming the scene for acts of computer piracy, in particular for the illegal sharing of works protected by copyright and related rights.
The issue of the legitimacy of the conduct of the so-called copyright trolls has been addressed by the Court of Justice of the EU in the context of case C-597/19 concerning the infringement of copyright on a peer-to-peer network for the sharing of torrent files.
The Advocate General of the CJEU, Maciej Szpunar, in his opinion delivered on 17th December 2020, first of all clarified the terms in which this conduct is expressed. Firstly, companies or specialized law firms purchase limited exploitation rights on some protected works for the sole purpose of being able to use them in legal proceedings to obtain, after tracing the IP addresses of internet connections, names and addresses of users who have illegally downloaded the protected material. Subsequently, compensation claims are sent to such users for the damages allegedly suffered by the company with the simultaneous threat of taking legal action. Finally, most of the time the damaged companies propose an amicable settlement in return for the payment of a sum of money, often exceeding the damage actually suffered.
There is a clear risk that the spread of such an activity could generate a real business in the field if even only a part of the users contacted decides to pay, generating revenues – to be shared with the holders of the related rights – which can also exceed those deriving from the legal exploitation of the protected works. For this reason, the AG questioned the legitimacy of copyright trolling, given that this practice is not based on the exploitation of copyrights but on the violations of those rights, such that the copyright is in practice “not used for its original purpose and is used, if not abused, for purposes outside of its scope”.
Well, the Court of Justice, in the aforementioned judgement called .M.I.C.M. of 17 June 2021, had the opportunity to express itself on the subject without taking a position. On that occasion, it stated that the systematic registration of IP addresses of users and the communication of their names and addresses to the owner of the violated intellectual rights (or to a third party) – provided that it complies with certain conditions – is to be considered legitimate in itself, where such practice is aimed at obtaining the compensation for the related damages.
The Court states, however, that, in order to avoid the possibility of abuse, it is necessary that that request for information by the right holder should be adequately justified and proportionate, a circumstance which the referring court will have to assess.