Tuesday, 8 September 2015
Lex Machina's Copyright Litigation Report
Following up on its Trademark Litigation Report, IP data analytics firm Lex Machina has recently released its Copyright Litigation Report (“Report”). The Report reviews and gleans insight from copyright litigations filed in the U.S. Federal District Courts in the last five years. The Report divides its analysis between “ordinary copyright” litigation as distinguished from “file sharing” litigation. Notably, in 2014, there were 2138 “ordinary copyright” litigation cases filed and 2127 “file sharing” litigation cases. Interestingly, the file sharing cases have spiked in the first half of 2015 to 1700. The Report defines “[f]ile sharing cases . . . as copyright cases involving claims of infringement for BitTorrent/P2P file sharing brought against John Doe(s), anonymous defendants, their IP addresses, or Internet Service Providers (ISP).” The top three federal districts for copyright filings include: the Central District of California, first; the Southern District of New York, second; and the Northern District of California, third. The two districts in California dominate the filings with almost 2,500 since 2011 in the Central District of California (Los Angeles) and 400 since 2011 in the Northern District of California (San Francisco/San Jose/Palo Alto). The Southern District of New York had 1,061 cases filed since 2011. The Report notes that:
Textile pattern litigation has risen greatly: looking at four leading plaintiffs in the space (Star Fabrics, Unicolors, L.A. Printex, and United Fabrics Int’l.) case filings have increased: from 67 in 2011 and 62 in 2012, to 87 in 2013, and 106 in 2014 (with 95 cases filed through June 30, 2015). Since 2009, these four parties have filed 546 cases. These companies are represented by the Doniger Burroughs law firm, causing that firm to be the top copyright plaintiffs firm as discussed below.
The Report further notes that:
Top plaintiffs include companies in the music (Broadcast Music, Sony/ATV Songs, Songs of Universal, UMG Records, EMI, and more), software (Microsoft), fashion (Coach), and textile patterns (Star Fabrics) industries.
Top Defendants include retailers (Ross Stores, TJX (TJ Maxx), Amazon, Burlington Coat Factory, Rainbow USA, J.C. Penny, Sears, Forever 21, Wal-mart, and Nordstroms), music labels (Universal Music, Sony Music Entertainment, UMG Recordings), and publishing / education (Pearson Education and John Wiley and Sons).
The Report also states that fair use is “usually” resolved by summary judgment and includes other interesting findings such as, “About three quarters (72.9%) of those who successfully contest ownership / validity do so at summary judgment.” In discussing file sharing, the Report states that many file sharing cases are brought by “erotic website owner” Malibu Media—around 4,322 cases. On a very controversial issue—statutory damages in copyright cases, the Report notes that, “The District of Oregon, despite seeing 8 cases, awarded a median of less than $1,000 in statutory damages for consent/defaults, significantly less than the other busy districts. The Southern District of Indiana has the highest such median award ($51,800, 11 cases).” The Report contains a wealth of interesting information and is available, here. Enjoy!