I have been getting a few request for ideas on how to respond to the exculpatory evidence request letters lately. As previously stated, there is NO legal requirement to reply to the request.
Saying that, I’m of the opinion it could be good to respond on your own terms. As I have previously cautioned everyone – don’t make any false statements if you do respond. Also do not provide the Troll any of the information he is asking for. The type of response I’m suggesting is an adapted Richard Pryor Response. Take a look at the example and tell me what you think. If you decide to make such a response, please edit the letter to fit your situation. So if you have a Linux OS that comes with BitTorrent installed, please remove that corresponding part from the letter. DearTroll
Keith Lipscomb and the rest of the Copyright Trolls have been taking a beating on various fronts. Just as in a military offensive, the attacker adjusts his actions as need to get the effects they desire.
Recently Troll Lipscomb sent out “Exculpatory Evidence Request” letters. The letter is smoothly written to inform you, as the ISP subscriber, your public IP address has been associated with copyright infringement activity. Troll Lipscomb wishes your assistance in making the case for him, as he only has weak evidence unless you help him. This is actually good evidence of a Troll admitting the public IP address they collected is so weak they are unsure of actually trying to litigate it further – “CLUE!”
Even with claims of looking for “exculpatory” evidence, he still makes this comment.
Included herewith is a form which allows you to convey to us any evidence which you believe makes it less likely that you are the infringer.
How about “that you are not the infringer.” He goes on to tell the recipient that unless the request is returned in 10 days, they will assume there is no exculpatory evidence.
Now further down in the letter is a notice to the recipient that anything you say or provide to them will likely be used against you. He also goes on to tell you to email and/or write to him if you do not wish further contact from him until served with a complaint/summons. The email address for this is email@example.com. This part reminds me of a Florida court order with similar provisions.
Here is my 30 Aug 12, post concerning Lipscomb (Malibu Media) and a Florida court order with 5th Amendment like aspects. Please take a read. The wording in the court order is similar to what is in this exculpatory evidence request. Note: One part is not in the letter – Plaintiff/Troll must inform the Doe that if the they (Plaintiff/Troll) incorrectly “name” the ISP subscriber as the defendant in a case (i.e. true name – Malibu Media LLC, v. Mark Jones), then Plaintiff/Troll could be subject to sanctions IAW FRCP Rule 11.
The questionnaire asks the recipient to provide the following information.
- List all authorized users of the network. Doesn’t ask if there have been any unauthorized users.
- Is there a WiFi access point associated with the public IP address? This question is so poorly worded; some people may not understand that he is asking if your Internet connection is wired, WiFi, or both. Note: for most people, the answer is going to be YES – Wired & WiFi.
- Has BitTorrent been installed on any systems?
- How far is the closet neighbor to you? They already know this via Google Maps/Google Earth.
- Have you or other users purchased Plaintiff’s movies?
- Have you visited any Web sites containing Torrent Magnet Links?
- Have you or others used search engines to search for information on torrent files or Web sites?
- Have you or other ever visited streaming media site containing “unauthorized” copies of Plaintiff’s movies?
- Have you ever receive notices of copyright infringement from your ISP or other content owner?
Now what is missing from this questionnaire? How about “Did you do this?” Why? Maybe because they don’t care if you did it or not, regardless of this “exculpatory evidence request.” A good piece of exculpatory evidence is a simple statement that you didn’t do this.
I will caution everyone in responding to such a request. It is voluntary, but as stated, it will be used against you if possible. Before you make any response, be sure to review any relevant court orders in PACER to ensure Lipscomb is abiding by them.
If I was to respond to it, I would not list out all the people who have had access to the network. Probably the only thing I would do is give them the Richard Pryor Response (RPR), the fact that my WFR is wireless (WiFi), and a statement not to contact me again until served. Remember – This is an “Exculpatory” evidence request, not an “Inculpatory” request. “Show Me The Evidence” Article.
Other relevant posts from FCT/SJD