Two Wrongs Don’t Make a Right

You may have seen the exchange of views and opinions concerning TechDirt article (Court Rejects Liberty Media’s Attempt To Say NY Defendant Can Be Sued In California), 6 Oct 11.  It was entertaining and insightful.  Thanks Sophisticated Jane Doe (SJD) and The Anonymous Coward (TAC).  I thought I would cover some of the key points and put my thought to some of them.

First off TAC quotes Marc Randazza from what appears to be from one of his settlement letters.  Please correct me if I’m wrong – I would love to read see the full letter or other correspondence.  Wow if that doesn’t make the settlement letters from John Steele seem cordial and heartwarming. 

Although we have only caught you stealing one movie, it is our intent to forensically examine every single hard drive and other electronic storage device in the house, and to depose all members of the household. Thus far, I have yet to find and intellectual property thief who only steals one movie. In any event, I very much doubt that someone who stole Down on the Farm only stole that movie and not many other adult entertainment films.

Fear – yes that is the mind killer.  Lets look at this without fear and analyze it. 

  1. The paragraph is written to tell the recipient they are a “thief” and guilty – no doubt!  Well based on common sense and simple statistics, not ALL the people accused of this are guilty.  The Trolls don’t care for this view (or simple law of probability), as it then calls into question their methods for generating revenue through their settlement efforts.  If not ALL the accused are guilty, then what additional steps will the Trolls be required to take to prove their position?  Regardless of the additional steps, it will cost them time and especially money – reduces their profit margin. 
  2. I love the threat of conducting a forensic analysis of ALL the computer hardware in the house.  I got a great laugh out of that one.  Mr. Randazza knows how much forensic analysis costs for a single hard drive, much less than the firewall/router, multiple hard drives, smart phones, and game systems that use the network.  Better make sure you have a case that the Doe did download the file in question and it can be found on their hardware.  Failure to do that will cost you dearly Mr. Randazza – but you already know that.  You words above were only for those less educated and/or experienced. 
  3. As far as the forensic examination, Mr. Randazza omits the fact that a court is not going to authorize a “Fishing Expedition” type of forensic examination.  The court is going to limit the search to the facts of the case.  The court will limit the examination to most likely the following: 
  • A.   MAC & IP addresses of Firewall/router and systems on the network
  • B.   Search for the specific file they claim was infringed upon (Name, size, and Md5/SHA hash)
  • C.   The presence of the file sharing software detailed by Plaintiff. 

The threat of finding other copyright infringed files is moot unless Plaintiff is somehow able to convince the judge that the search should be expanded – They will also have to show the court the probable cause for such an expansion.  One thing I will caution anyone who somehow makes it to a point of Plaintiff asking them for a voluntary “Consent to Search” of their systems – Plaintiff will have the consent paperwork written to allow them to search “Any” and “All” parts of your network and systems.  Anything they find, even if it doesn’t directly apply your case will be used against you.  If your child illegally downloads/shares a music file, they will use it to show your household conducts illegal file sharing, even if the porn file they claim you downloaded/shared isn’t found.  Remember with a civil case, the level of proof required is just a preponderance of evidence, not beyond reasonable doubt. 

TAC then quotes him concerning if the John Doe decides to fight and challenge the jurisdiction of the matter. 

If you challenge jurisdiction, you will either fail in your attempt or you will find your victory to be very pyrrhic.

My goodness Mr. Randazza, what are you afraid of concerning the jurisdiction issue?  Oh yeah, that you will lose!  As you did on this case.  Oh, and thank you concerning the “Pyrrhic” threat – (FYI – Pyrrhic is a 17 point word score in Scrabble).  For those of you less educated than Mr. Randazza, he is informing the recipient that if you succeed in challenging him on jurisdiction, the cost of doing so will be so high that your victory will be overshadowed.  Nice. 

The correspondence goes on between TAC and “Anonymous Coward” (AC).  I can’t say it was Randazza or one of his staff, but I guess his views are not far off from this “guy.”

It is very lively discussion – please read.  The Troll supporter didn’t like the word “Shakedown” in reference to the Troll efforts.

Shakedown? Hardly. You seem to gloss over the part where his clients had their rights violated by the defendants. It’s not a “shakedown scheme” to go after wrongdoers. Give me a break.

This goes to show what we are dealing with here – People who have the mindset of guilty until proven innocent.  I will not dispute that people have copyright infringed on these movies.  But to say that everyone is guilty because they have collected your IP address is totally ridiculous.  Add to this that the IP address was collected by organizations or people with a direct financial tie to pursuing these cases and you have more problems.        

If he doesn’t like the word “Shakedown,” the Trolls can change their tactics.  This title they earned officially came from a Judge in a recent VA ruling.  Going after wrongdoers is not a “Shakedown,” I will concede this.  It is the way the Trolls go after the registered owner of the IP addresses that makes it a “Shakedown.”  Couple this with the inability of the Trolls to actually take anyone to court and the “Shakedown” title gains more credibility.  Now add the fact that many of the Trolls like to dismiss John Does that file motions to remove the motion and not address it – it really looks BAD!  Please go after the wrongdoers, just do it in a way that isn’t so sleazy.

The Troll supporter makes more comments.   

I brush it off because it’s deliberately chosen for its negative connotation. Offering to settle with someone whom you have reason and evidence to believe did you wrong happens everyday in every branch of law. I got a ticket the other day for making an illegal turn. The cop told me that they would offer to plead it down to a non-moving violation at the courthouse if I plead guilty. I guess that’s a “shakedown” too, right? Give me a break. Happens all the time, every day, under all kinds of circumstances. You guys are just whining because it’s happening to your pirate friends.

The comparison to the Cop and traffic ticket was worth another laugh.  Not even close.  I understand what you are trying to get at though.  Offering a settlement is not a “Shakedown.”  Again it is the way the Trolls “offer” the settlement and questionable/suspect action they take, that makes it a “Shakedown.”  And since they have no proof beyond the IP address that allegedly downloaded/shared the file, their case is weak.  They know this and that is why they fight so hard.  This is a serious money making endeavor. 

More funny comments:

The fact is, thousands of people are teaming up to violate this plaintiffs rights. That it’s economically unfeasible to sue each one individually isn’t the plaintiff’s fault. The blame lies with the defendants–all your nonsensical rhetoric doesn’t erase this fundamental fact. Your friends brought this on themselves.

Understand it is economically unfeasible to “sue” each defendant individually.  You are not suing anyone; of course I make the exception of those few default judgments because the John Does decided not to do anything.  The Troll is using these cases to “threaten” the defendants with the possibility of being sued.  The fact that the Plaintiff is losing funds over the infringement of their product does not give them the right to automatically blame all the defendants (registered IP owners).  IP address does NOT equal culpability.  The blame does reside with the persons who are infringing – take the effort to actually try to find these people and not just run a shakedown operation.   

This should be on Comedy Central:

You can try and lay this all on the “scant evidence,” but I suspect you’d whine no matter what the evidence. The evidence is strong enough to bring suit, so that means it’s strong enough to offer to settle in good faith. Again, I think you just don’t like it since your pirate friends are being affected negatively. I don’t have any sympathy for them since they brought this on themselves. You seem to not understand who is the victim here–the plaintiff.

I love the legal terms that seem so impressive – “bring suit” & “settle in good faith.”  Obviously many of the courts out there have disagreed with the Trolls and dismissed most of the defendant for various reasons.  If the judges have ruled such, I guess it wasn’t strong enough to offer to settle in good faith.  I wonder how this guy could even write that line and not feel his nose start to grow.  Really, “in good faith.”  The only thing the Trolls have in good faith is the amount of money they are making on this endeavor.  I don’t begrudge any lawyer from making money, it is just the methods the Trolls are using are sickening.  What this guy doesn’t get is that just because the Plaintiff is being victimized, that does not justify victimizing ALL the Defendants.  The old saying is true. “Two wrongs don’t make a right.”

Well friends, time to go for now.  Please read the article, comments, and tell me what you think.     

About 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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5 Responses to Two Wrongs Don’t Make a Right

  1. Wow, it’s an interesting and rarely seen genre – discussion overview 🙂 Very helpful as it saves a lot of time for those who can’t afford reading the entire discussion, but writing such an overview is a titanic job. Well done!

  2. DieTrollDie says:

    Hi SJD. Loved reading the article and comments, but it seemed a bit jumbled. It also gave me the chance to organize my thoughts and post them – good therapy 🙂

    DieTrollDie 🙂

  3. CTVic says:

    One point on your discussion as I’m working my way back through your posts here. The Trollawyers threats say that they’re going to essentially pillage every tech device in your home to hunt for said “contraband”, and that if they find anything else that’s questionable, you’ll be hit for that as well.
    But everything in their case depends on access to a Bit Torrent client. Any defense attorney with a pulse who can walk upright without dragging their knuckles should be able to successfully argue that the plaintiffs should ONLY be able to look at devices that actually support a Bit Torrent client, and that they should only be interested in the exact “contraband” that they’re specifically looking for.
    Meaning that as long as you lawyer up when the threats get real, the troll douchebags shouldn’t be able to confiscate your xbox, ps3, dvr, smartphone, etc … so long as they don’t support a Bit Torrent client. Also meaning that if they can’t find their crappy overrated, undersold movie on your BitTorrent-enabled devices, you shouldn’t have to worry about them finding an obscure music download from 2002 and suing you for that.
    Point being – if you should ever get to the stage where trolls are actually demanding depositions and hard drives (which is unlikely in the first place), lawyer up and protect your fu@#%^ rights!

    • I asked Rob Cashman about the scope of search here.

    • DieTrollDie says:

      Yes I got a good laugh from it. Good advice to any Doe that is unlucky enough to reach that point. Get a lawyer. I just can see some Doe that means well, but the Trolls abuse him and get a consent to search for EVERYTHING. Most people don’t understand you can say NO or just limit a consent to search. BTW, do you have a copy of this letter? Would love to read the whole thing.

      DieTrollDie.:)

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