When Austin-based filmmaker Lex Lybrand set out to make a movie about patent trolls, people who abuse the legal system by weaponizing intellectual property rights, he wanted to focus on Texas, not Silicon Valley. Still, he’s gotten tangled up with the other Silicon Valley — the satirical HBO comedy about the California tech hub. Lybrand says a writer for the show stole elements of his film, including key lines of dialogue, scenes, and overarching plot elements.
With help from an Austin intellectual-property firm, Lybrand is now trying to set the record straight. First, it helps to understand why an indie movie set in Texas and built around intellectual-property abuse, would potentially catch the eye of a team of Los Angeles-based TV writers. For one, tech companies are often the target of these patent trolls, who use overly broad patents to milk settlement money from large companies with deep pockets. For Lybrand, who wanted to make a film set in and centered on his home state, this arcane legal controversy happened to be perfect fuel for a tiny movie with a David vs. Goliath setup.
The Texas setting has a strong real-world basis, too. Federal courts in eastern Texas have become infamous over the last decade for being home to an outsized number of patent-infringement cases. That happened because the area’s court system is especially friendly to plaintiffs — in the small Eastern District town of Marshall, Judge Rodney Gilstrap oversaw more than a quarter of the country’s patent cases in 2015, reports the Electronic Frontier Foundation.
According to Vice, he and a group of other sympatico Texas judges have helped transform the Eastern District into a patent troll haven, through a mix of inadvertent courtroom rule changes to speed up cases, and a not-so-subtle desire to reap the benefits of a lucrative legal cottage industry. Hotels in Marshall are so commonly frequented by lawyers that one hotel even purchased a subscription to the electronic court-records system PACER, to better sell rooms to patent-case workers. (This is all set to change following a landmark Supreme Court decision last month that’s changing the rules on where patent litigation takes place.)
Because of Texas’ patent troll notoriety, Lybrand’s film, The Trolls, received partial funding from an Austin IP firm called Cesari & Reed, LLP, with additional support from a crowdfunding campaign on Indiegogo. Lybrand says the firm wanted to highlight the legal abuses in an effort to bring more attention to the issue.
Like The Trolls, the most recent episode of HBO’s Silicon Valley, from creators Mike Judge and Alec Berg, focused entirely on patent trolls, and the ways they extort both big companies and small startups using broad ownership of a vague idea. In the episode, fictional Pied Piper CEO Richard Hendriks is targeted by a former attorney who claims he owns the patent to a technology covering the "storage of media files on a network,” forcing a number of defensive maneuvers from Pied Piper to avoid the $20,000 settlement fee.
Lybrand says the show’s script lifted a handful of scenes and plot elements straight from his movie. He even cut together a side-by-side comparison that illustrates how the sequences of his film, with a runtime of 93 minutes, were condensed into a 30-minute episode of television, down to putting a Chevy Volt in the parking lot of the patent troll’s modest home office:
“I watch the show pretty regularly, so I had seen part of the ‘next week on Silicon Valley' teaser at some point during the week,” he says. “So, I knew they were doing something with patent trolls. I didn't know how specifically related to my film it was until I watched it on Monday night.”
Perhaps the most egregious offense, Lybrand says, is the line, “You trolled the trolls,” delivered by Silicon Valley’s Zach Woods. That’s effectively the tagline of Lybrand’s film, and the line is repeated in one form or another multiple times in his movie. “This type of plagiarism is definitely illegal. Trademark or copyright infringement, for sure… and I'm still not sure if it counts as irony.” Lybrand adds that he’d like to seek a writing credit on the episode, as well as residuals. “But please, for the love of God, also tell me if this counts as irony.”
When reached for comment, HBO issued this statement to The Verge: “We are confident that the episode is the original work of the writers of Silicon Valley.” The episode’s sole credited writer, comedian Andrew Law, did not respond to a request for comment. His IMDb page lists a number of writing and acting credits, most prominently Late Night with Seth Meyers. Law has never written for Silicon Valley before, but Lybrand says he’s tangentially connected to The Trolls. “He's good friends with an ex of one of the actresses,” he says.
As for how a small indie film could have caught the eye of an HBO writer, Lybrand has a few potential answers. The Trolls didn’t make it into SXSW last year, despite the best efforts of Lybrand and his production crew. It did, however, make the rounds online. “It's an indie film, but it wasn't completely invisible,” Lybrand says. “We played festivals across the country, including one at a comedy festival in New York, where the credited writer lives.” Lybrand did a televised interview on CNBC with comedian Adam Carolla, who’s made headlines in the past for fighting a patent troll over podcast distribution. The Trolls has also been available via video-on-demand on Amazon Prime since October 2016.
Lybrand is considering his next steps, including potential legal action. It helps, of course, that he’s now good friends with people at the Austin law firm that helped fund his movie. “Having them on my side in this case is a huge plus. I don't have to worry about the whole ‘good luck going up against HBO and their lawyers’ –– I have a literal team of lawyers on my side,” he says. “I know their argument will probably be ‘this is some indie flick nobody has ever heard of’ –– but that's not the case with this one. Not this time.”