Vrede too wrote: ↑Mon May 29, 2017 12:55 pm
rstrong wrote: ↑Mon May 29, 2017 12:10 pm
While still protecting people from trolls who rely on "fight back and win, and you'll only be bankrupted anyway."
That's not how it works here. With our contingency system, small potential damage claims are already weeded out since lawyers won't take the case.
That's exactly how it works in the US. Patent, copyright and ADA trolls usually ARE lawyers. It keeps their costs to a minimum while they sue people in bulk - demanding pay-outs just low enough that giving in to the extortion is cheaper than fighting and winning. Those lawsuits never, ever reach a judgment in court. They get dropped if the defendant fights back...after racking up major legal fees.
Sure, you get cases like Prenda Law or the lawyer who claimed copyright on the word "stealth" in virtually every context eventually getting shut down by the courts. But only after they get REALLY greedy and break laws, and only after they've successfully extorted a lot of people.
It's reached the point where lawsuits are now a form of investment for venture capitalists. Fund litigation for a cut of the money. Like Peter Thiel funding Shiva Ayyadurai. Ayyadurai claims to have invented email, and despite how thoroughly documented his lie is, he sues anyone who says otherwise for defamation. He already won $750,000 from Gawker - not on the case's merits but through Gawker being bankrupted by Thiel's other lawsuits. Now they're suing Techdirt and others.
One bit of good news: Cloudfare is
fighting back against one patent troll. Not just trying to invalidate their patents, but going after the lawyers themselves. Saying that the patent troll "is really just a law firm, rather than a tech company." Apparently that's a bit of a no-no.
But the really unusual no-no was that they went after a larger company like Cloudfare. Usually they won't go after say (real example) a company making the networked fax machines. They go after all the company's customers. Folks who are less likely to be able to afford to fight back.
It's not just IP and defamation. I watched a story a decade back - on 20/20 or a similar show - about a woman who had sued virtually everyone on her street (kids playing in the front yard lowers property values; the same goes for noise from them playing unseen in the back yard) and every company (tripping over a doorway or display stand, etc.) in her town. Being a lawyer she has only minor costs, and she could always drop a case if someone decided to bankrupt themselves on principle.
Vrede too wrote: ↑Mon May 29, 2017 12:55 pm
Under your Rx, people that suffered real harm but with iffy legal claims that can only be settled with a judge sorting out the complexities will forego suing out of fear despite the fact that they would have won.
With "bogus lawsuits to extract settlements from those who can't afford to fight back" being a standard business model, what you describe is the lesser of two evils.
Vrede too wrote: ↑Mon May 29, 2017 12:55 pm
Here's one example - As we know, zero Canadian banks had to be bailed out as a consequence of the Shrubcession thanks to superior Canadian regulation. It's a guess, but I assume that also means that far fewer people were people were hurt by Canadian banker greed, negligence and criminality. Why should US victims have a higher hurdle to get redress from our banks that did all those things?
Regulation is the answer. Get rid of the "wild west", anarcho-capitalism playing field.
Anti-SLAPP laws are VERY successful, letting defendants obtain a ruling on whether the action against them is even valid, BEFORE bankrupting themselves with legal fees. And sometimes recover some of those fees.
Alas, only some states have anti-SLAPP laws. The trolls often have some choice regarding which state to litigate in.