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. 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.
Now 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.