Cory Doctorow Proposes “Kickstarter” Defense Against Patent Trolls, Copyright Trolls, and Copyfraudsters

Over at Locus, sci-fi
author and Boing Boing co-editor Cory Doctorow outlines an
intriguing proposal on how to crowdsource a defense against
patent and copyright trolls. The basic collective action problem is
that trolls have a huge incentive (concentrated benefits) to demand
payments from thousands of allegedly infringing companies and
individuals (diffuse costs) under the threat of expensive lawsuits.
Doctorow reports that patent trolls extort $29 billion annually
from lawsuit-wary companies.

In his new article at Locus, Doctorow offers what he
calls the Magnificent
Seven solution. In that 1960 western movie, a farming
village hires seven gunslingers to help defend themselves against
extortionist bandits.

To counter patent trolls, Doctorow suggests that it might be
possible create a Kickstarter-like mechanism to aggregate fees from
companies and individuals to fight back against the trolls, making
it too expensive for them to threaten infringement lawsuits. From
Locus:

Imagine a Kickstarter-style service for a new kind of
class-action lawsuit: the class-action defense…

What would a Kickstarter for Class Action Defense look like?
Imagine if you could pledge, ‘‘I promise that I will withhold
license fees/settlements for [a bad patent/a fraudulent copyright
fee/a copyright troll’s threat] as soon as 100 other victims do the
same.’’ Or 1,000. Or 10,000. Hungry, entrepreneurial class-action
lawyers could bid for the business, offer opinions on the
win-ability of the actions, or even start their own kickstarters
(‘‘I promise I will litigate this question until final judgment if
1,000 threat-letter recipients promise to pay me half of what the
troll is asking.’’)

Basically, it’s the scene where the villagers decide to stop
paying the bandits and offer the next round of protection money to
the Magnificent Seven to defend them.

There’s a lot to like about this solution. Once a troll is
worried about a pushback from his victims, he’ll need to raise a
war-chest, and since the only thing a troll makes is lawsuits,
he’ll start sending more threats. Those threats will attract more
people to the kickstarter, raising its profile and its search-rank.
The more the troll wriggles, the more stuck he becomes.

Doctorow’s proposal does help solve this particular collective
action problem inside the bounds of our current legal environment.
As he notes:

Getting screwed by thieving, amoral ripoff artists sucks. The
reason people give in to the blackmail is because it is
unimaginably, impossibly expensive to fight back. I think that if
we can nudge ‘‘unimaginable and impossible’’ into the realm of mere
‘‘expensive and time-consuming,’’ we’d have armies lining up to
hand these crooks their asses.

As I have argued, a far better solution would be for Congress to
entirely eliminate software and business practice patents, and to
limit copyright to the life of the author plus ten years. In the
meantime, let’s go with Doctorow’s proposal.

For more background on how patent trolling stifles innovation,
see my column, “Patent
Trolls of Tech Fairy Godmothers.”

H/T Jeff Patterson.