New Report Surveys IP Litigation Trends Over the Past Six Years

By Casey C. Sullivan, Esq. on August 31, 2015 | Last updated on March 21, 2019

If you work in an IP-heavy industry, you know just how important a role litigation can play in protecting (or abusing) intellectual property rights. Now, Lex Machina, the IP litigation research company, has conducted one of the first, wide-ranging overviews of copyright litigation trends over the past years.

Lex Machina put its big-data-crunching skills to work for its first ever Copyright Litigation Report. The report surveyed almost 15,000 copyright cases from 2009 through mid 2015 to find IP litigation patterns, trends, and insights. Here are some of the highlights.

The Usual Suspects: Common Plaintiffs and Defendants

This shouldn't come as a surprise to anyone who follows IP litigation. The most common plaintiffs were the usual suspects: the music industry, publishing, software, and fashion. After all, these industries are based on novel, creative works and they've spawned a whole cottage industry of in-house attorneys and outside firms working to enforce their IP rights through litigation. BMI was the most litigious, filing 968 cases since 2009, followed by Sony with 528 cases and Warner Music Group with 401.

Who are the most common defendants? No, it's not college kids downloading Taylor Swift's latest albums or street vendors selling knock-off handbags. IP litigation is much more of an ouroboros, with those most commonly sued looking a lot like those doing the suing. The most frequent copyright defendants are retailers, followed by music and book publishers. Ross was well ahead of other defendants, getting sued 181 times. TJX Companies, home to T.J. Maxx, Marshalls, HomeGoods and others, came in second, with 98 cases.

Given those players, it's no surprise that most of the litigation takes place in the Central District of California and the Southern District of New York, homes to Hollywood and Broadway respectively. Those were the only two districts that saw more than 1,000 copyright cases over the almost-six year period covered by the report. Together, those courts were home to 37 percent of all suits.

Internet Downloaders Settle Much More Than Everyone Else

Lex Machina also gives some insight into typical outcomes. When it comes to Internet file sharing cases, that outcome is almost always a settlement. Kids accused of downloading or distributing files in violation of a copyright settle their cases 90.6 percent of the time. That's a much higher rate than in traditional copyright cases, of which 64.1 percent result in settlements. File sharing cases now outnumber all other copyright cases, according to the report. At their peak in the fourth quarter of 2014, there were 904 file sharing cases, compared to just 500 other copyright lawsuits.

For those looking to calendar out their next copyright lawsuit, the report also gives a good idea of just how long disputes take. The median time for a temporary restraining order is 8 days, while preliminary injunctions last 7 and a half months. Overall, it takes 2.1 years to get through trial, according to the report.

No One Wins on the Merits

Actually winning a copyright dispute -- and getting damages -- on the merits is rare, however. Lex Machina looked at 14,669 cases in total and found that only 348 of them resulted in compensatory damages on the merits. That's a rate of 2.3 percent.

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