Of Orcs and Trolls: Elevated Constitutional Discourse

From the oral arguments in eBay Inc v. MercExchange, a recent Supreme Court case:

     JUSTICE SCALIA: By not occupying it, you mean including not licensing it to somebody else.
     MR. PHILLIPS: Well, if you didn’t license it — and actually we have no relevant licenses here too — that would be another factor that ought to be –that ought to count in the mix. Again, it’s not — I’m not looking for a presumption the other way and I’m not looking for categorical rules that say that if you –if you’re a nonperforming entity, that you don’t get a license, or even if you’re a troll, as that term gets bandied around, that you’re never entitled to a — to an injunction.
     JUSTICE KENNEDY: Well, is — is the troll the scary thing under the bridge, or is it a fishing technique? I — I want —
     (Laughter.)
     MR. PHILLIPS: For my clients, it’s been the scary thing under the bridge, but —
     (Laughter.)
     JUSTICE KENNEDY: I mean, is that what the troll is?
     MR. PHILLIPS: Yes, I believe that’s the — I think that’s what — what it is, although you — maybe we should think of it more as Orks [Orcs], now that we have a new generation, but at this point troll is the word that gets — that gets used.

Share

3:35 pm on August 25, 2006