The difficult starting point for analyzing BitTorrent copyrightlitigation is acknowledging the difference between copyright trollsand more “legitimate” copyright holders.75 Additionally, the levels ofculpability among a given pool of alleged illegal downloaders mostlikely varies widely: for every “Adrienne Neal” who is factuallyinnocent and has never even heard of the copyrighted material in
question, let alone intentionally downloaded it, there is presumably asophisticated pirate who is factually guilty and deserves punishment.76 Courts are thus divided on how to best preside over these types ofcases.77 The disparate parties and stakeholders involved make itdifficult to precisely formulate a “silver bullet” solution.78 Instead, thebest way to eliminate copyright trolls is through a combination ofsafeguards that judges can use at their discretion after applying a“smell test.”79 Because the copyright trolls in these lawsuits “have intheory violated none of the law’s formal rules and principles,”80 a“smell test” is necessary to determine the true motives of the plaintiff.Although courts cannot ignore an allegation of copyrightinfringement, a judge can use his discretion over matters such asjoinder, right to anonymity, and statutory damages to rein incopyright trolls if the judge has reason to believe that the plaintiff isabusing the rules of procedure in order to obtain names andaddresses to send threatening settlement offers.