With 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.”
- 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.
- 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.
- 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 line – If you are served with a summons/complaint, do something instead of sticking your head in the sand.