Thanks for the posts, scraggy. These lawsuits are making some very interesting point about the "strategic litigation"/"extortion letter" racket.
In the Baker case, the argument is that the trolls have no intention of filing a lawsuit, so the extortion letter constitutes fraud and the letter itself is an instance of wire fraud because they used the postal service to deliver an extortionate claim.
The reason the porn trolls generally back off when someone threatens to fight back in court is precisely what Oscar mentioned before about some of the image trolls — they have to consider the risk of going to court and losing cases, thus creating legal precedents that are bad for the trolling industry.
The legal paper from law professors Gideon Parchomovsky and Alex Stein also address why the trolls fear actual litigation:
Enforcement organizations are repeat players in the copyright arena. As such, they can produce “cease and desist” letters and court briefs at a much lower cost than their adversaries, and then leverage this advantage into a favorable settlement. These settlements economize on litigation costs, but they also stunt the development of fair-use, misuse and other copyright defenses, as courts are increasingly denied the opportunity to consider these defenses. A corollary cost of this dynamic is that it sweeps problems under the rug and thereby prevents policymakers from adopting corrective measures. After all, disputes that have been settled privately between the parties rarely make policymakers to do list.
Source: The Relational Contingency of Rights ( http://tinyurl.com/6vw7u4j )
The emphasis is mine. This statement is basically what Matthew has been saying: Rolling over and being a coward to save money and/or because of ignorance and fear is wrong. Why? As the professors say, because it basically empowers the trolls to go after other innocent victims and prevent the abuse from any oversight by the courts or any possibility of the policymakers taking corrective action to prevent future instances of the abuse.
Invoking RICO to go after the basterds may be a stretch because they are basically taking advantage of a legal loophole that favors copyright owners in a disproportionate way, but if it works it would be the best way to start the drive to make real and permanent change to copyright law in order to level the playing field.
Whether or not they can nail the porn trolls with the RICO charges, these cases substantiate the need for changes in policy. Perhaps some of us in the ELI community can start lobbying the appropriate authorities and bring this serious problem to their attention. Perhaps it could be included in the proposed Orphan Works Amendment, as some kind of "anti-abuse" measure to take out the loopholes.
The changes I would like to see:
1) A warrant or court order being a legal requirement for collecting evidence from someone's server, thus taking out PicScout and any other crawler's gill-netting approach and the profit motive for people to hire them, and;
2) The requirement of a proper cease-and-desist letter being issued FIRST for any alleged infringement, giving copyright users the opportunity to back off in the case of innocent infringements. This wouldn't apply if the infringement was clearly malicious or if evident damage had already been done to the copyright owner. If the copyright user resists, then the settlement claim and threats of litigation can proceed.
The Orphan Works Amendment is still in the works, so to speak. The US Copyright Office would be a good place to start the lobbying.
I'd like to add that Dr. Michael from Aloha Plastic Surgery is my hero for taking Glen Carner and Vincent Khoury Tylor to task for their
business practices thinly-veiled extortion bullshit at much expense to himself in money and effort. I eagerly await to see him prevail with a decisive victory and have Carner and Tylor pay HIM for statutory damages, attorneys fees, and perhaps punitive damages.
In doing so, another precedent would be set that hurts all the other trolls for their evil ways and the way would be paved for corrective legislative measures.
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