What To Do If You Are Served By A Copyright Troll

Respond!

DFT1With all the recent Prenda Law (Steele Hansmeier Duffy Lutz Saltmarsh…) insanity going on, it has been hard to focus on other Copyright Trolls needing our attention.  The Prenda Law ship is taking on water and the fallout from this is going to have an effect on all the Copyright Trolls.  One Copyright Troll that needs continual attention is Keith Lipscomb, Lipscomb, Eisenberg & Baker, PL.  Troll Lipscomb is different from John Steele in that he is smart enough to try to maintain a low-profile and not stick his foot in his mouth.  A major customer of Lipscomb is Malibu Media (X-Art, Colette Leah, Brigham Field).

A recent development in the Malibu Media cases is a combination of filing single named defendants based off previous smaller mass-Doe cases.  There appears to be three differences from previous filings –

  • Defendants receive an “Exculpatory Evidence” letter
  • Defendants are served a summons/complaint
  • Lipscomb submits an exhibit showing multiple alleged infringed movies (some may noteven be Malibu Media owned) being shared by the public IP address over a long time-period (“extended surveillance”)

It appears Troll Lipscomb is trying to add additional pressure to non-settling Does, under the guise of “please tell me why you didn’t do this and we will not sue you.”  Sound all good and fair, but that is not the case.  Lipscomb has already made a determination to extort pressure on the ISP subscriber based on their alleged BitTorrent monitoring activity.  By the time they have sent these letters, they already have conducted their “extended surveillance” and made up their mind.

The focus of this article is what to do if you find yourself in this situation.  I will stress that these are my opinions and it is not to be taken as legal advice.  Each defendant is different, as well as the case details that must be taken into consideration.  Important point – “Copyright Infringement may cost you, but perjury may get you thrown in jail.”

  1. DON’T DEFAULT!  That means stick your head in the sand and ignore the summons.  There are better ways to respond.  Note: if you are in a jurisdiction that hands out small default awards it could work out to your favor.  BUT – a default has the possibility of being up to $150K plus attorney fees.  Be warned.
  2. Hire or at least consult with an attorney knowledgeable with these types of cases.  A knowledgeable attorney will be able to help you with responding to the summons in a manner that best suits you.  The response could be an effort to work out a settlement or a full-out denial and counterclaims. Yes it will cost you money.  Sorry, but sometimes the cost is worth it.  Please note that many of the attorneys on the EFF list are overwhelmed with requests for assistance.  Pro Bon representation is not a likely option, but it doesn’t hurt to ask.
  3. If you cannot afford an attorney, file some sort of response to the summons/complaint.  Don’t make it easy for the Troll.  To quote a very knowledgeable person on this – “Any response (even a terribly written one) is better than no response.”  Your response is simply an answer to each of the allegations laid out in the complaint.  You only respond to each allegation with either “ADMIT”, “DENY”, or “DON’T KNOW.”  There is no reason to go into any details or evidence at this stage.  The evidence will come out in the deposition and/or trial – if it ever gets that far.

Examples of allegations and responses for each one:

  • Complaint – 14. Plaintiff is the owner of United States Copyright Registration Number PA000XXXXXXX (the “Registration”) for the motion picture entitled “POS Porn Movie” (the “Work”).
  • Defendant Response – Defendant denies Plaintiff’s allegations in Paragraph 14, because Defendant does not have sufficient knowledge or information to form a belief about the truth of the allegations.
  • Complaint – 19. Each Defendant installed a BitTorrent Client onto his or her computer.”
  • Defendant Response – Defendant denies the allegations in Paragraph 19.
  • Complaint – 31. Each Defendant went to a torrent site to upload and download Plaintiff’s copyrighted Work.
  • Defendant Response – Defendant denies the allegations in Paragraph 31.

Here is an article for a Colorado Doe who filed a response to a Malibu Media complaint.  You can also see the Doe listed out “affirmative defenses” and “Counterclaims.”   You answer all the allegations, sign, date, and file it with the appropriate court.  Please contact the clerk of the court for assistance in filing an answer.

For majority of these cases, the claims will be for Direct Copyright Infringement, Contributory Copyright infringement, and possibly Negligence.  Negligence is pretty much a dead issue, but I don’t put it past Troll Lipscomb to have it in the complaint.

I would like to point out that one of the problem Doe Defenders have been having with the courts is obtaining an award of reasonable attorney fees when the Trolls dismiss their cases.  I believe this is going to change in time, but currently this is one reason the Trolls have very little fear in filing these weak-a$$ cases.  It appears many of the courts do not like to award attorneys fees to the prevailing party if it is a result of the dismissal and not judged on the merits of the case.  Even when a defendant is dismissed a second time for the same allegation (thus considered judged on the merits – “Two Strikes Rule“), the courts don’t always award attorney fees without a fight.  I find this logic strange, as the court clearly understands to be able to best defend oneself requires an attorney (at a substantial cost).  No offense to the Pro Se defendants, but the attorneys have more knowledge and experience and it shows.

What Comes Next?

Case management meeting/hearing between both sides.  This where both sides try to work out the schedule for discovery (depositions, forensics, experts, etc.), and trial dates.  Depending on the agreement between both sides, what happens first can vary.

  • Document discovery.  This could be additional ISP records showing DMCA take-down notices, or records of IP address usage for an extended period.
  • Depositions.  This is where both sides have the opportunity to interview key personnel in an effort to develop evidence.  This is where a defendant would be interviewed by a Troll.  The questions would be focused around finding out anything about you or others in the residence that would aid their case – BitTorrent use, admission of downloading sharing Plaintiff’s movies, destruction of evidence, etc.  This goes both ways, so you could request to interview the technician who conducted the IP monitoring for your case.  Not something Troll Lipscomb wants to happen.
  • Forensics.  Analysis of the systems involved is a key (if not risky) point for the Troll.  It is expensive and if it comes back with nothing, they are hurting.  The Troll has no idea if any of the systems currently in the residence were present during the period of alleged infringement.  Only consent to a neutral party doing the forensic analysis and that Plaintiff pays for it.  Also make sure to limit the scope of the examination to only relevant information – BT software, Plaintiff’s movie(s) in the complaint, and torrent file that corresponds to the movie(s) in question.

Many things can happen during this period, but for most of the people involved so far, the cases tend to languish on the court docket unless the Troll can find something to pressure a settlement.  It is extremely unlikely the Troll will dismiss the case because the depositions and forensic come back with nothing.  They will simply claim you destroyed evidence or removed the offending system from the network.  If all their discovery efforts come back negative, the best they can do is make innuendos.

So What Is An Option?

If it gets to a point where the Troll doesn’t have any “real” evidence to show the defendant is responsible, a motion for a summary judgment can be made.  This is where the defendant asks to court to rule on the evidence (lack of it) and make a judgment as to if Plaintiff has proven its case.  WARNING: This is a risky motion, but for the truly innocent (no real evidence against them) it is a real option to keep in mind.  If the judge rules in favor of the defendant, the case is over.  If he rules for the Plaintiff, then it moves to determination of damages.  After such a judgement, an award of attorneys fees is easier, as it has been judged on its merits.

A thing to remember is that even with all these recent changes to Troll tactics, they have still never taken anyone to trial and had a case judged on its merits – NEVER!  Why?  Because they chose not to.  This speaks volumes!  IMO, even if they have some real evidence showing guilt, they will still be loath to exposure the details of their operations in open court.

Bottom lineIf you are served with a summons/complaint, do something instead of sticking your head in the sand.

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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21 Responses to What To Do If You Are Served By A Copyright Troll

  1. whitakerlaw says:

    This is absolutely, perfectly good advice. Although someone’s knee-jerk reaction might be to say “I didn’t do this so I will just ignore it” that is the worst thing you can do. Many people keep getting huge default judgments for just ignoring these complaints. Don’t make the mistake of thinking you can’t get in any trouble even though you did nothing; you can.

  2. doe says:

    I’m confused because I’m not seeing any named defendants in rfcexpress, just a lot of individual does. Do you have information that mass naming is coming?

  3. Another doe says:

    Would you wait until a summons, or contact council as soon as the exculpatory evidence letter is received? Is the troll intent here to take all these to early trial or just have another chance for does to self incriminate?

    • DieTrollDie says:

      I would try to get a free consult, but certainly if you get a summons. You or an attorney can also request more time to respond. IMO they dont want any trials. They hope to get more information to help force a settlement.

      DTD :)

  4. InnocentDoe says:

    There are a couple things I was wondering about. One, have any cases actually made it to the discovery phase? At that point, you would think they would have to invest a good deal of money.
    Also, and this is a big one. How is this “Extended Surveillance” legal. I have heard of them threatening people with “after watching your IP, we have seen it also download ebooks, videos, etc..” How is it illegal to put survelliance on someones phone line, but this is legal? Is it only legal because the courts haven’t had a chance to look into it? With all the privacy laws, I can’t imagine that this would be allowed. What do you guys think?

  5. MMvDOE says:

    Do you know which specific cases have gone to depositions. I would like to see the questions they ask?

  6. that anonymous coward says:

    Proper responses do not include a photo of you flipping them off…
    Just saying.

  7. Lawyer4LittleGuy says:

    A friend of mine was just served with one of these. I’m an attorney with no experience in this area of law. Could you please give me a brief explanation of why the Troll cases are so weak? Why are they dismissed? For the record, I’m super pissed off at these guys. My buddy just had a baby, his second, and is REALLY stretched for cash and stressed. The movie in question “The Divide” only made like $30k at the box office with a $3 MM budget. Suing people like my friend is how they want to make up their margins? They’re giving people heart attacks. Any legal analysis/advice you can provide would be very helpful and greatly appreciated.

    • that anonymous coward says:

      Welcome down the rabbit hole.
      Not knowing which troll is representing the crappy movie, 3 mil budget 130K boxoffice (and its not a Uwe Bolle film), makes it a little harder to give you detailed information. If its a standard mass case X vs 1000+ case numbers are wonderful (as is RECAPing the docs for dissection.). Its also helpful for us to keep abreast of the players on the field.

      Problem 1 – An IP address can not/does not/will not point to a computer or user. Its not like a social security number that is linked only to 1 person.
      Problem 2 – Most of the IP capture is done by German firms, who all seem to have sprung from a single company who had their asses handed to them by a court for lying about problems in their system. They were also sued by a partner lawfirm for not disclosing the flaws in their perfect tech.
      Problem 3 – At best they have a momentary capture of IP addresses allegedly participating in a swarm, this does not show the content was ever completely downloaded.

      Head over to FightCopyrightTrolls.com one of the FAQs there is written by me, its still mostly relevant and is written from the point of view of your not alone stop stressing.

      Cases are dismissed for being on the docket to long with no one being named, people are sometimes dismissed because they “settle” (read pay the extortion), sometimes someone points out the lack of a copyright filed…
      Is there a copy of the copyright registration of the movie attached to the suit?
      Because I can’t find one in the database, and if its not been timely filed that caps damages.
      Was it actual service or just a shakedown letter. Single named case or mass?
      Sorry if I have more questions that answers, but the devil is in the details…

    • that anonymous coward says:

      Oh hey I knew the name looked familiar…
      https://torrentlawyer.wordpress.com/tag/the-divide/
      Mr. Cashman is a friend to us “evil anti-copyright villains” *giggle*
      He is a valuable resource and advocate for people targeted in these things. He is good people.

      As it looks like a mass of these cases have been filed in sub 100 groups, it might be best to not mention your friends case number publicly.
      On the upside you now have access to a long list of cases filed by these people over this stinker of a film and can see how some people fought back and escaped.

  8. doecumb says:

    DTD-

    As is known, Doe defendants can also request documents and deposition for discovery. Trolls in the shadows want to threaten Does in daylight. Would it be useful to have a basic list discovery items toward the trolls? Is this a tool in putting trolls on the defensive? (Or does a generic list give trolls a headstart in providing a deceitful response?)

    What if they were to face the same scrutiny they threaten Does with?

    Thanks for the informative post.

  9. DoeSeeDoe says:

    Am still wondering how it is that the Florida Bar has not investigated Lipscomb on ethics violations. Aren’t there rules against profiting directly from lawsuits and against the aggressive threats and harassment of his henchmen, like “Lee” from “K-Beech”? How are they blind to a notorious extortion scam like this? If this isn’t unethical, what is? Would it do any good to lodge a complaint or send a letter to the FL bar?

  10. MynameisDoe says:

    Do all Does receive an “Exculpatory Evidence Form”?

    Or does receiving this form mean you are in the process of being served?

    • DieTrollDie says:

      No. This one is new to the Lipscomb Trolls who support Malibu Media. Prenda Law Inc. tried this months ago, but it doesn’t seemed to have work out for them. It doesn’t mean you will automatically be served.

      DTD :)

  11. Pingback: How To Answer A Summons From A Copyright Troll | DieTrollDie

  12. Pingback: Maximum Default Judgement For CP Productions Inc. v. Glover, 1:12-cv-00808 (IN) | DieTrollDie

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