The Truth Of The Matter OR “Copyright Troll Crap Shoot”

I decided to write this after reading a few people giving the Trolls credit for having a strong case against the people who have actually infringed.  Regardless if you believe the offender should pay an outrageous settlement amount, their case is not strong.   I want everyone to know what the Trolls already understand – They have a very weak case unless you give them some sort of evidence to help them.

The truth of the matter is copyright infringement of various digital media happens day in and day out.  Some of the infringed material is pornography and is downloaded/shared via BitTorrent.  Some revenue is lost to the content owners, but I cannot give you any valid amounts.  Movie and music owners/providers will claim large sums of revenue and taxes are lost to piracy and America is suffering economic damages as a result.  SF1  Drama Queens.

The same old claims were made when the VCR became easily available to the general public decades ago.  “I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.” – Testimony of Jack Valenti, President, MPAA, 1982.  Of course the predictions didn’t come to pass – just like the recent end of the world claims.  Gloom and doom are the standard cry these bozos make when they are unable to think of a way to adapt to new situations and changes in public views.  The content owners who do well are the ones who have a product the masses want and they make it easy to obtain at a reasonable price.  Now even during the best of economic times, infringement is always going to occur.

Some of the content owners and their Trolls like to claim each act of infringement is a lost sale to them.  This is a ridiculous claim, as many people would not pay for a particular movie and would only download it for free.  I’m not saying the act of infringement isn’t wrong, just “that it is going to happen.”  One thing I do tell people is that if they are doing it, to stop.  Now I don’t think that a person who personally infringes should be paying out thousands of dollars.  If these movies were worth so much money, why are they only charging $20-40 a month for access to ALL the content on their sites???  The Copyright Law was not written to address the issue of personal BitTorrent infringement (non-commercial).  The Copyright Trolls and content owners are abusing it (the Statutory Damages aspect) to generate fear and revenue on a repeatable basis.

So how many Doe defendants in a mass case are the actual infringers?  Hard to tell – so many variables.  To make it simple I will say 50% of the Doe defendants are the actual copyright infringer – no basis of fact in choosing 50%.  To make a claim that 100% of the ISP subscribers are the infringers is stupid and CANNOT be backed up by any facts.  Hell, my 50% claim holds more logic then theirs.  The Trolls knows that if they admit weakness in their evidence, it opens a door in that an infringer can escape through.  So they go the route of claiming all are guilty and never have to prove it when the cases are judged on their merits.

Another truth is the Copyright Troll is going to have a hard time proving their cases, even with a guilty person.  Why???  I’m glad you asked.  The scenario I will lay out is just one possible, but you will see how it applies to other ones.  This is not a suggested course of action, just want to show some of the obstacles the Troll will have to overcome if things don’t go easy and the Doe agrees to settle.

Details for this fictional case

  • The ISP subscriber did download/share the copyright protected movie – AKA: Spank Mom 12, via BT, on 1 April 2011.
  • The Doe network set-up is 1) cable modem, 2) WiFi Firewall/Router (WFR), 3) four computers in the residence, & 4) one guest used the Internet connection on that date.
  • The Doe receives the ISP subpoena on 15 Jul 11.  The Copyright Troll obtained the ISP subscriber information on 15 Aug 11 (via a subpoena in a mass-Doe case) and sends the Doe a settlement demand letter on 15 Sep 11.
  • The Doe does not reside in the jurisdiction of the court for the mass-Doe case, ignores the settlement demand, and does not hire an attorney.
  • The Copyright Troll dismisses the mass-Doe case (1 Mar 12) and on 1 May 12, files a single “John Doe” case against the ISP subscriber in the correct jurisdiction.
  • The Copyright Troll sends the Doe a new settlement demand letter which is promptly ignored.
  • On 1 Jun 12, the Copyright Troll amends the complaint and names the ISP subscriber as the defendant.  A summons soon follows and the defendant answers the complaint via an attorney with a flat denial of wrongdoing. Note: the defendant only tells the attorney that he didn’t do it.

CS1Now at this point the Copyright Troll has no real idea if the defendant is the actual infringer.  Even if their belief is more along the lines of a 85% guilty/15% innocent ratio, it is still a crap shoot.  The odds look good up front, but they don’t take into account the other factors.

Is the system that downloaded/shared the copyright protected movie still on the network after more than a year?  Has it been replaced with a new one?  Can they show that a system was removed from the network?  Unlikely.  Was the old one sold on Craigslist, donated to Goodwill, or simply thrown away?  If it is no longer in the residence or on the network, the direct forensic evidence is gone.  As the WFR logs for 1 Apr 11, are long gone, there is no way to determine what systems were assigned internal IP addresses at the time of infringement.

Even if the offending system is still on the network, there could have been a hard drive failure.  A new hard drive and operating system could have been installed and the MAC address is still going to be the same.  A computer savvy individual could easily reload an operating system with a date prior to the infringement.  Or how about this?  The defendant uses VMware (a virtual computer) run on his physical system to conduct his BT activity.  Unless the virtual system is up and running, it will only appear to be file – all the evidence is contained within and password protected.

The system could have also been cleaned (wiped) of any instances of BT, torrent files, movies, and Web searches for Torrents.  Since the defendant was notified of the ISP subpoena (15 Jul 11), there has been plenty of time (11+ months) to wipe any and all evidence.  Note: having some sort of file deletion program is NOT indicative of guilt – don’t believe the hype.  Now there is a chance some remnant of evidence could be found during forensic analysis, but is can be easily countered.  I would assume anyone who is accused of such activity would conduct Internet searches for the case and movie involved.  Researching these cases can easily bring up the Plaintiff, movie title, torrent files, and various tube clips.

As this scenario is only dealing with a guilty party, I haven’t even addressed things like Open WiFi, but it could easily be used to claim innocence.  My point in all of this is to show you just how hard it can be for the Troll to actually prove their case in civil court.  That is even with a “Preponderance of Evidence,” standard, which is less than in criminal cases (Reasonable Doubt standard).  This is exactly why (to date), there have been NO porn copyright troll cases judged on their merits.  The only thing we have seen is a limited number of default judgments against defendants who fails to respond, an unknown number of settlement paid to the Trolls (dismissed with prejudice), a few settlements paid to defendant who counter-sue, and dismissal of cases for many who do not give into the Trolls.

So how do you like those odds now?  Even with a guilty person, it isn’t always a slam dunk.  These odds are the reason the Troll wants you to talk to him or even hire an attorney to negotiate for you.  I back this up with the history of these types of cases.  The PA Bellwether case is going to force the Trolls into expending time and money to try to find some real evidence, as well as exposing the faults inherent to their technical monitoring set-up.

So when the Troll calls and try tell you how strong their evidence is, just greet him warmly, give him the Richard Pryor Response (RPR), hang up, and laugh your ass off.

DieTrollDie :)

About John Doe (DieTrollDie)

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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15 Responses to The Truth Of The Matter OR “Copyright Troll Crap Shoot”

  1. Johndoe says:

    Subscribe

  2. anonymous says:

    Just to support your quote about VCR’s and money lost because of piracy, its fun to watch this TED talk about the 8 billion dollar IPod

  3. pissed off Doe says:

    Most likely reasons for no trials is the only proof trolls probability have is tracing on the totlrrent file that they themselves uploaded. I guess we will wait and see the PA trials. My bet is trolls will settle and go for more fishing.

  4. S.O.L says:

    Great post! Additionally, wouldn’t it be awfully expensive for a Troll to have forensics performed on the 4 machines noted in this particular scenario? 10K +?

    • DieTrollDie says:

      Computer forensics are not cheap, but it also depends on what you ask the examiner to do. At a minimum, they would image each system and make working copies for the examination. They would then do a simple Hash file search for the movie, keyword searches particular to the case, a search for any BT client, torrent files, and Internet searches for torrents and the movie in question. Based on any findings, the examiner would go back to the client to show them the results (or lack of them) and to ask if you need them to dig deeper. The more you search, the cost goes up. IMO the troll wants some sort of evidence quickly to pressure a settlement – Remember their goal is to generate settlements and not fight it out in court. The matter of costs can be an issue if the defendant doesn’t have assets they can effectively target. If a defendant has nothing, wasting a thousands on computer forensics is stupid.

      DTD :)

      • AngryDoe says:

        Aren’t you allowed to stipulate or limit what the trolls are allowed to look for or at least present as evidence with regards to information found on one’s computer? If they are trying to prove you downloaded a file can’t you limit their search to just the file in question ?

      • DieTrollDie says:

        As far a granting a consent to search, yes you can limit the scope of their search. For criminal matters, the scope of the search is governered by the judge, taking into consideration the search application, rules of law, and possibly motions from defense to limt the scope. I would assume for civil matters of discovery, the judge also has the power to adjust the scope from a “free-for-all” to only specific files, programs, and keywords. Here is a good example of what a judge can do. Motion For Discovery Discovery Granted In this discovery against the Troll/Plaintiff, the judge decided the scope that Mr. Pietz requested was appropriate. The Trolls are learning that the game goes both ways.

        DTD :)

  5. DieTrollDie says:

    Much discussion is going on at fightcopyrighttrolls.com right now. :) “Ignoring” these issues is a bad thing. Choosing not to respond to the various Troll BS antics is not necessarily bad. Make your own informed decisions and constantly adjust your actions to best suit you. Going so far as to let a default judgment be made against you is stupid. It is sad to say, but this is a game of cat and mouse with the Trolls. The stakes can be high and people can suffer because of it. One of my favorite lines from the movie Hunt for Red October sums it up, “The hard part about playing ‘chicken’ is knowing when to flinch.”

    The Troll will assess you, your worth, the likelihood you will settle, your attorney (if you have one), and the court/judge involved. You need to do the same thing. The advantage you have is if it comes down to it, you are fighting for your livelihood. The Troll is just fighting for money (Greed).
    DTD :)

    • that anonymous coward says:

      The problem is there are some who seem to insist the advice is to ignore everything, and this is far from what is being said.
      A Doe needs to do due diligence and find out who is after them.
      While we all know the big bad players, there are smaller outfits out there who are doing much more targeted work.
      The demands are still very high, but these smaller outfits often are working with much more conclusive evidence – watermarked files pointing to a specific user. While the Doe might not be responsible for something spreading, there is real evidence they were the source of the file.
      The smaller firms don’t do mass cases, they don’t need to. They have the contact information already, the Doe was a customer of the site. These “Does” need to more more quickly and decide what course of action to take, where someone who gets an ISP letter in a mass Doe case has time to do research, get informed, and be prepared.

  6. JD says:

    I’ve read in other posts that in some cases people are arguing that the plaintiff sometimes freely distributes these videos on free pornography websites (likely to allure sharing).

    I have a few questions in terms of technology…

    1) In order to know the exact hash of a file in question, would that file not have been an original version distributed at some point by the original owner, whether via a subscription website or some other means of distribution?

    2) If the Plaintiff posts works on publicly free pornography websites, isn’t it then possible someone whom visits that content (in some cases millions of views) could have that EXACT file on their computer, for example, in temporary internet files, for a long period of time?

    EXAMPLE: Subscription Site A takes a “copyrighted” video file from their site and uploads it to Free Site B (same file) to advertise or Troll. Free Site B does no compression, renaming, etc., so the file is 100% the same on Free Site B as it was originally. User John Doe watches the “Free” video and the file is stored on the computer in temporary internet files. Even as temporary internet files are removed or deleted, that file still exists on the hard-drive until something else takes it’s place (which may never or only partially happen on big drives, bytes of falsely accusing data).

    3) Any website can track your IP, 100’s to 1000’s (or more) of sites/webpages store YOUR IP address, and every server does it automatically upon access. A search for “What is my IP” on Google yields 452,000,000 places that are willing to figure that out for you, and an infinite number more than that are doing it and storing that info without telling you. What’s to stop a random low-budget site from sharing that info with a Troll (or hell could have been created by a troll themselves to systematically place “copyrighted” files on an end-users system.)?

    It feels like a Troll could build or be involved a in a scamming system to create a false positive, and that even forensic realization of a file on an end users computer could be challenged…thoughts?

    I’m not speaking from experience, just pure technical head-scratching.

    • that anonymous coward says:

      OHAI!
      1 – The hash for the file can be different. I believe DTD had a wonderful example of this posted previously. The single addition of a red dot to an image leads to a new hash.
      The “same” movie can have multiple hashes associated with it. Cutting off credits, new hash. Converting it to a different format, new hash.
      This is the reason a majority of the “experts” will always claim they downloaded the file from the swarm to make a comparison between the original and the downloaded file to ensue its the same thing. Think about that some one has to watch porn all day side by side to make sure the content of the file is the same.

      2 & 3 – that would be to much hassle. Streams are not permanent and it would not be worth the time, effort, cost for them to pursue a system like that.

      To be able to scan your system would require a court case, a court order, and an independent expert who would charge them a serious chunk of change.

      It is much easier for the copyrighted files to “somehow” end up on torrent sharing sites, because they can then claim there was intent to download and deprive them of income…
      Someone could click a forwarded link in your other example and proving intent would be next to impossible.
      Part of the reason they enjoy going after BT swarms is users upload and download at the same time, where someone hitting a tubesite is just kind of downloading.

  7. NintenDOE 64 says:

    DTD, it gets even better than that, Let us take the copyright enforcement group’s model for example:
    a content owner hires the CEG to, specifically (this information comes from the CEG’s Declaration of Jon Nicollini), monitor a specific torrent file (that is a copy of the content owner’s “work”) without preventing or attempting to prevent any copying of said work for the purpose of filing lawsuits against all who copy said work. NOTE: the content owners contract the CEG to do this PRIOR to any recorded copying.
    Just using this example alone the trolls, such as marvin cable, cannot prove that infringement happened. this is because the content owners already agreed to use their wok or allow their work to be used in a manner that enables the copying and distribution of said work. In short, legally recognized consent to copying and distribution. I understand many may disagree with the use of torrents however not every download is a copyright violation and that includes with copyrighted works. the fact is, troll cannot prove that the download was infringement within the bounds of the law. in fact the entire legal scam hinges on one general misconception: that any downloading any content owner’s work via torrent is copyright infringement. this simply isn’t true as all one has to do is review the relevant facts surrounding the torrent file itself. Since most torrent related websites have a strict and swift take down policies (torrent freak did an article on this), the choice to use a service that would leave known “infringing” content available denotes consent. Judge Saylor in Massachusetts has already determined that content owners have various other methods of protecting their content other than potentially abusive and frivolous litigation (not in those exact words).
    In conlcusion, the only crap shoot is whether or not they can trick people into paying them “settlements” for having broken no laws nor violating any rights. If we go beyond the prejudgments of guilt or innocence, which happens do to the controversial nature of torrent use, and we look at the facts in an unbiased manner, we will all see that ALL Doe’s sued from similar tactics are innocent regardless of your opinion on torrent use. its time we stop dancing around the issue in order to play the anti-piracy-innocent-victim, no matter what the ignorant shall brand you merely because you were involved. Again, the fact is, all if not the vast majority of troll victims are innocent because the trolls are yet to produce a copyright infringement lawsuit that involves a legitimate claim of copyright infringement.

  8. Pingback: Computer Forensics & Copyright Troll Cases | DieTrollDie

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