I’m doing a follow-up piece on invoking you 5th Amendment rights at a copyright troll deposition. Take a look at what a deposition is from the Cornell University Law School. Some Troll depositions in VA are scheduled in a few weeks. Based on the results of the depositions, the Trolls may find this a new viable avenue to take.
Some people may have an issue with invoking their 5th Amendment rights, but with these cases it is it a “no-brainer” in my opinion.
First you need to look at the case complaint. What is the allegation? For case number 1:12-cv-01272, Openminded Solutions, Inc., v. John Doe IP: 126.96.36.199 Defendant, there is three allegations. Complaint_01272(VA) (** Please also not that the “Defendant” is public IP address 188.8.131.52**)
The important thing to understand is with the Negligence claim, you don’t even have to have any knowledge that the activity was occurring. Just that you were “negligent” as the ISP subscriber (and thus responsible for the wrongdoing). Yes the negligence claim is very weak, but who wants to take a chance that some judge decides to rule differently. The fact the Troll is claiming negligence, would make me invoke my 5th Amendment rights.
If I Invoke My Rights They Will Think I Did It!!!
News Flash!!! They already think you did it. That or they think you know who did it. By talking to them, you give them the opportunity to get additional information that can benefit their case. By invoking your rights, they are left with the same weak evidence they had before – Only the Public IP address. Even if you talk to them and admit nothing, they can still name and serve you if they chose to. Speaking to them does nothing to benefit you – so why do it? They decide what to do on this case, not you. The worst they can do is whine to the judge, “they will not talk to me.” :( Most judges will tell them to shut up and name you if they want to go forward. If they had the evidence to name you in the first place they would have. If they name you with their weak evidence, they open themselves up to sanctions, as well as a defendant answering the complaint and making counterclaims. Once a complaint is answered, it is not as easy for them to just drop the case. They don’t want counterclaims – just your money.
Again, you invoke your rights based on the possible criminal aspect of the copyright infringement and negligence allegations. It doesn’t matter if the Troll is only going after you in civil court. There is the possibility your answers could be used to come after you in a criminal proceedings.
Well What If They Troll Offers Not To Go After Me In A Criminal Proceeding?
First off, it isn’t their option. Criminal charges are brought by local, State, or Federal prosecutors. The Plaintiff would be a Victim in these matters, but not the controlling factor. Now the Troll could offer not to come after you in a civil suit, but I would only consider this if the offer included a dismissal with prejudice. But be careful then – if you say a guest or your child/adult-child did it, they could go after them.
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