For those of you who don’t know, in a “previous life” I was an investigator. My duties were basically to prove or disprove an allegation. I have seen people incarcerated and released because of my actions. It was a good career and it gave me so much insight into life’s various facets. Running an investigation is never easy, but correctly resolving one is a reward in itself. That is one of the reasons I’m so disgusted with the half-a$$ way Copyright Trolls (and the content owners who employ them) run their operations. I will not even call what they do an “investigation.” The only thing the pornography Copyright Trolls do on 99.99999% of their cases is a cursory inquiry of facts. Now I will say I know of one case (Flava) where Copyright Troll did some investigative steps before going forward with a request for a default judgment.
If you are new to copyright trolling, you should understand that these efforts have nothing to do with protecting a content owner’s rights or getting back lost revenue. It is simply a business model to repeatedly generate settlements under the threat of suing people. I back this up with the multitudes of complaints the Trolls submit to the courts, as well as the TOTAL lack of having ANY cases being judged on their merits. These complaints and the supporting documents (term used loosely) show that there is no real effort to identify who is the true infringer. “Why?” You ask…
It is because running an investigation takes time and money to even have a chance of getting down to the truth. For most of these cases (if not all), the Troll lawyers are not getting paid an hourly rate (usually of $200-400 an hour – rough estimate) by the Plaintiff (porn content owner). The deal they have with the Plaintiff is to allow the Troll to represent them in these cases and for any settlements, the Plaintiff get a share. So the porn content owner doesn’t have to pay the lawyer any money to possibly reap the benefits. The exact details on the settlement split are a guarded secret – one that is likely to get the troll in trouble with a court and ethics board. As the Troll is footing the various expenses in running these operations, they are greatly motivated to keep costs to an absolute minimum and keep profits up (Forbes Article on John Steele).
To give you an idea of what a real investigation entails, I have attached a federal criminal complaint for child porn possession and distribution against David Sleezer. I will give the standard disclaimer that Mr. Sleezer hasn’t been convicted of this charge (at this time). I have added a redacted version of the complaint, as the full complaint is graphic in its description of the child porn files found initially. complaint_redact_00022(VA) Now I will say that the FBI did make a mistake in automatically thinking that someone in the residence of the ISP subscriber was responsible. The right thing the FBI (and US Attorney) did do is once they determined the ISP subscriber (and family) was innocent; they were no longer subject to a criminal prosecution. Not even for negligence! This is something the Trolls will not and cannot afford to do, unless forced to by a defense attorney or an unflattering media story (70 Year Old Grandma Accused of Downloading Porn!). The Trolls, just like the FBI, understands that there is no way to say with any degree of certainty that just because a person is the ISP subscriber, they are guilty of downloading the media in question. Judge Wright recently highlighted the extent of Prenda Law Inc., efforts to correctly identify the true infringer as a “Hunch” (at best!).
Take a read of the complaint and you will first see the investigator lays out the experience he/she has to be running such an investigation. You will see no such section in the Troll complaints. The best you will find is some documents from their IP monitoring apparatus stating they use proprietary software to come to their conclusions. Follow that up with “hunches” and the Trolls are in business. Following this you see the FBI agent used specialized P2P software for Law Enforcement to force the download of the suspected child porn from only the suspect IP address. This is something the Troll has not done in a majority of its cases. Judge Wright recently noted this flaw in a Prenda Law Inc., case.
In this case, Plaintiff’s reliance on snapshot evidence to establish its copyright infringement claims is misplaced. A reasonable investigation should include evidence showing that Defendants downloaded the entire copyrighted work—or at least a usable portion of a copyrighted work. Plaintiff has none of this—no evidence that Defendants completed their download, and no evidence that what they downloaded is a substantially similar copy of the copyrighted work. Thus, Plaintiff’s attorney violated Rule 11(b)(3) for filing a pleading that lacks factual foundation.
One thing I do know about such Law Enforcement software, it that it is tested and the test results are freely available to defense attorneys and the public to scrutinize. You will not find this kind of openness from the Trolls. Even if the Troll software was open for review and found to be error free, there is no way to claim with any certainty that the ISP subscriber is the responsible party. We have gotten one Troll to admit in court that in approximately 30% of cases the ISP subscriber is not the infringer. Prenda Law Inc., has been repeatedly made to admit that if the ISP subscriber is likely to be the infringer, but they cannot be 100% sure of this.
As these cases are not designed let people claim innocence at any level, the Trolls even try to make people without computers pay a settlement to make the threat of up to $150K in statutory damages go away.
Take a look at the criminal complaint and see what steps the FBI agents took to establish who was actually responsible. The mistake they made at first assuming the ISP subscriber was responsible, was easily fixed by looking at the recent WiFi Firewall/Router logs and examining the systems in the house. Note: No child porn found and an open WiFi Internet connection – CLUE!!!! Someone likely in close proximity to the ISP subscriber is responsible for this. They next conducted additional investigative leads and let their findings (evidence) speak for themselves. Based on this evidence they were able to get a search warrant for the residence of Mr. Sleezer. Mr. Sleezer gave what appears to be “False Statements” to the agents when he denied downloading or sharing child pornography – That will get him additional charges. They conducted an on-scene forensic triage and preview of his system and discovered suspect child pornography, as well as evidence showing he used his neighbors Internet connection. Take note of section #42 of the complaint. The FBI agent conducting the triage was “…trained in computer forensics conducted an on-scene triage and preview using certified forensic tools…” You will not see that in any Troll complaint or supporting documentation. I have had more computer forensic training and certifications than most of these Bozos – Yes I’m talking about you, Peter Hansmeier of 6881 Forensics LLC.
You can see by the criminal complaint that a real investigation takes time and money, but it also reduces the chance of the wrong person be accused. It has the benefit of making sure the right person is held accountable. Yes, there are differences in criminal and civil law/investigations. The thing that doesn’t change is need to conduct it fairly and let the evidence speak for itself. Try to make the evidence fit you view is stupid and gets people hurt. Not that the Trolls or the content owners who employ them really care.
As I finish this, Judge Gorman, ILCD, just kicked the Copyright Trolls in the teeth. IL_Order_TrollSlam_11Feb13 Read the Order and Opinion and Report and Recommendation, and see what he thinks of the Troll investigative efforts.
The flaw in this analysis is the final statement. The summary of the investigator’s reports (attached to the complaints) reveals that each one of the Does’ computers showed exactly the same unique Hash identifier. If that is true, then “reassembly” of all those files could not possibly result in the creation of a full version of the Work. It would instead result in either 9 copies of the same piece or 9 copies of the entire Work. All it suggests is that (1) at some point in time each Doe’s client downloaded the Work or part of the Work and (2) on various dates each Doe’s client shared that Work or piece of the Work with the investigator. Hence, the allegations of the complaints, as supplemented by exhibits, are inconsistent with the boilerplate allegation that the Does, or their computers ever communicated with each other. At best, this simply amplifies the statement that the Does were part of the same swarm, insufficient to support joinder.
Sorry for being so long-winded. Please give me your thoughts on this.
14 Feb 13 – Thoughts on Open WiFi
In my post, I didn’t speak about the open WiFi aspect of this case. The news stories on this case focused partially on what could happen if you ran your WiFi Internet connection open. Due to US Copyright Law preemption AND the protections provided by the Communications Decency Act (CDA), there is no way the ISP subscriber in this case could be held liable for the alleged actions of Mr. Sleezer when he used their Internet access to download and share child pornography. Again, I will say Mr. Sleezer has not been convicted of this crime at this time. From the criminal complaint and Google Maps, I was able to approximate the distance between the two residences at 129’ (distance measured from closest edges – router/WiFi adapter placement in the houses would likely increase this). The line of sight between the houses is clear and the only thing blocking the signal would be the walls in the two residences. Now depending on various factors like the router signal strength and antenna used by Sleezer, this distance is not excessive. As Mr. Sleezer told FBI agents he does not pay for Internet access, he could have used some sort of directional antenna to increase available WiFi signals. Note: these antennas are cheap to buy or make yourself. Under $100 USB Yagi Antenna There is also the possibility that the ISP subscribers were boosting their signal to be able to use the Internet from the back yard. Under $30 WiFi Repeater
So how does this apply to the porn copyright trolls cases? Well one thing the Trolls will do if they don’t obtain a fast settlement is to do a little research on the Doe and their residence. One thing they will check on is the distance from neighbors to determine the likelihood of an unauthorized neighbor using the Internet access. I’m sure a Troll would have laughed at a Doe in this situation, claiming it was highly unlikely a neighbor that far away would have been able to use their Internet access. Not that it matters to the Troll - would have still claim you are somehow responsible due to “negligence” or “ISP terms of service.” Don’t believe them.
14 Feb 13 – Another CP Case and Wireless Access
Doing more research and I end up with another case of an ISP subscriber’s Internet connection is being abused by a third-party to download/share child pornography. The case is a little different in the offender was a relative living next-door to the ISP subscriber and was authorized to use the account (and had the password). I have added the redacted charge sheet, as it provides more proof on how to do an investigation and not just threaten people with financial ruin if they don’t pay a settlement regardless of guilt. S_Haworth_Charge_02662815 Here is a short KHOU news story on it.
I will say the investigators did it right by first doing a knock-and-talk with the aunt. They could have easily gotten away with first kicking in the door and putting everyone in cuffs. Even if the aunt had refused to cooperate, they could have secured the scene and obtained a search warrant (if they didn’t already have one signed and ready). Sometimes being nice and asking for consent is the easiest option. The charge sheet doesn’t have as much detail as I would like, but it is still shows more investigative effort than the Trolls do.