I tend to get emails from Does who are in a bit of shock after they receive notification from their Internet Service Provider (ISP) or call/letter from a Troll concerning a claim of copyright infringement. “What the hell is going on!?!?!???” I try to give them some answers, as well as other sources of information so they can make a sound decision. This is in direct opposition to the Trolls who don’t want the Does to actually think about this – Their view is YOU are GUILTY, PAY UP, make it FAST, and keep your MOUTH SHUT. Myself and others who post about this activity have been accused of skewing information and doing a disservice to all the Does who read the posts and comments.
Well here is a PUBLIC SERVICE ANNOUNMENT on my Blog – Take in all the information you can and make an informed sound judgment. Ask questions and do some research on the matter. Take EVERYTHING you read or hear with a bit of doubt. Assess what is the creditability and motive of the poster (This also applies to what the Trolls are saying). Combine all of this with what actions can be verified via the courts (PACER). Then make a decision that is right for you.
So what can you expect and what are your options?
Notified by your ISP that a subpoena (or Bill of Discovery) was granted and unless you file a motion to quash, they will release your personal information (AKA: subscriber information) on a certain date.
- First get a PACER account (http://www.pacer.gov/) and look up the case. I suggest using FireFox with the RECAP plugin (https://www.recapthelaw.org/), as this may allow you to get some of the documents for free. It also allows others to get copies of the documents you pay for. Documents are billed at .08 a page. Spend less than $10.00 a quarter and it is free. If your case is a State one, PACER is not going to have the file. Contact the State court and find out what you need to do to get copies.
- Note where the case was filed – top of the complaint. Is it a Federal Court OR some State Court like Florida? Larger States will have the overall jurisdiction broken up into smaller areas – i.e., Eastern District of California. Look up the jurisdiction of the court and determine if you reside in it.
- Obtain copies of motions. When you look up the case in PACER (or State court), make sure to get a copy of any motions that were filed with the court, as well as any rulings on them by the court. If the motion was accepted for filing with the court, that is a good start. Even if motions are eventually denied, review the judge’s ruling to see the reason and adjust the motion – refile as needed. As each court/judge is different, results will vary. The Trolls now seem to be sticking to the jurisdictions that allow for mass “fishing expeditions” of Does; many of the Does do NOT reside in the jurisdiction of the court. The Trolls don’t care if the jurisdiction is wrong at this point. Obtaining the subscriber information is their only goal at this point.
- If you decide not to file a motion, expect the ISP to release your personal information by the court ordered date. This will likely include, your name, address, telephone number, and email address. If you don’t want to get the telephone calls, you could change your number with the ISP prior to release. Set up a Google Voice account and give that to the ISP. Google Voice has the nice ability to download voicemail as a MP3. Depending of the Troll, this can show the extent of harassment they engage in. Once the information is released, expect calls and/or letters from the Troll to follow. Recommendation: Don’t talk to the Troll – they will only use what you say against you.
- Hire an attorney to represent you. If you have the money to spare, this may be an option for you. I would first suggest calling one of the attorneys listed on the Electronic Frontier Foundation (EFF) Subpoena Defense Page – https://www.eff.org/issues/file-sharing/subpoena-defense Attorneys are not cheap and the Trolls know this. An attorney can file motions, work out a settlement, and represent you if it ever goes to trial (unlikely in my opinion).
- File a motion as a single John Doe or as the entire group (i.e. Does 1-132). This depends of what you think will work best for you. The ideal situation would be for both types to be filed and see if they work. If you use your John Doe #, there is a chance the Troll will dismiss you and then refile against you individually. This is done as a scare tactic. One VA Troll even told a judge they actually do that to prevent future motions!
- The 1st goal of filing these motions is to quash the subpoena for the mass of the Does. Fact is, right now the troll can file single cases for all the Does and probably get a subpoena granted for each one. The Troll does not want to file singularly, as each case costs $350 to file, as well as the additional paperwork. The goal of the Troll is to make money and this costs him more.
- The 2nd goal is to sever the John Does, because the Troll has not shown there is more than a “similar” activity that all the IP addresses are accused of. Even if the same MD5/SHA-1 hash is found by his agents, this does not mean ALL the Does acted in concert for the entire period in the complaint. The nature of BitTorrent does not support the claims that ALL of the Does interacted with each others. BitTorrent Seeders and Downloaders come and go at various times during the life of the torrent.
- The 3rdgoal is to show the court that many (if not a majority) of Does do not reside in the court’s jurisdiction. NOTE: if this is one of the smaller cases filed with Does from the correct jurisdiction, then this is N/A. In a recent motion for dismissal in case # 3:2011cv02770, New Sensations v.1-1,474 (“Big Bang Theory: A XXX Parody”), a Doe not living in CA (used his JD#/IP address) stated the court does not have jurisdiction over him. The judge ordered the Troll to either dismiss the Doe (and file in the correct jurisdiction) or respond in two weeks to why it the Doe should not be dismissed. If the Troll is filing in a jurisdiction that is generally friendly to them and you reside in another jurisdiction, consider filing a motion through the correct in your jurisdiction. This something new and I have only seen one instance of it. It wasn’t resolved, as the case was dismissed prior to any decision.
- The next major goal all of us have to tackle right now is “Why” the IP address alone is not a good enough reason for the court to grant a subpoena. I’m reviewing reports that support this view and hopefully will have something out soon. We need to directly counter the arguments of the Troll that the IP address alone is a good identification method. It is a start in their efforts, not the end because it is financially easier for them.
Settle with the Troll. Not my personal choice as you can probably figure out. Every case is different and I will say you need to be VERY CAREFUL with this option right now. The Trolls are fighting back and one thing that is hurting them is that for a majority of the Does who refuse to settle, they do not take them to trial. To make a weak show that they are serious about taking people to trial, the Trolls are looking for some easy cases to win. One way to find easy cases to win is to talk to the Does before the “Settlement/Non-Disclosure Agreement” is signed by both parties. Remember people – it doesn’t matter if the guy on the other end of the line tells you everything is going to be all right. If you tell them anything before the Troll signs (finalizes) the agreement, they can change their mind and take you to trial. If you just gave them some corroborating evidence that will likely convince a judge to grant an examination of the systems, as well as depose (interview) other people in the residence, then you could be in a world of hurt.
After the subscriber information is released and the calls/letters start; what to do? I will say this many times – Don’t speak to the Trolls. Their evidence is weak to begin with and talking to them only gives more opportunity to get something to corroborate their evidence. Please don’t let your ego get the better of you and think you can reason with them or convince them you are not at fault. Please also remember these people generally have more experience interviewing then you do. Even if you are very careful of what you say, you could slip up and say something about your house or assets you have (kids college fund, etc.). The Troll now knows you are possibly a good target for increased efforts. The Trolls have stated openly and through their actions that they will really only go after people who have assets to pay. Chasing after a 20-year-old person working at 7-11 isn’t going to get them the money they want, regardless of a successful trial/judgment for them. This is a money-making operation, not an operation to protect the rights of copyright holders.
- 120 days – Federal Civil Rules of Procedures – Rule 4(m). This rule states the Troll has 120 days from filing the complaint to serve the named doe. For these cases, it is more like 120 days from the time the ISP releases the subscriber information to the Troll. If this goes over 120 days, the court or on motion from a Doe, can dismiss the case without prejudice or direct the Troll to make service by a specific date. If you are a Doe that does not reside in the court’s jurisdiction, the Troll isn’t going to name you anyway – improper jurisdiction. A motion to dismiss IAW Rule 4(m) is pretty straightforward – Introduction – state when the case was opened and when the ISP released the subscriber information to the Trolls – state how many days the case has been open with no service – request the court to dismiss the case without prejudice. You can file this motion as an individual Doe OR as the remaining Does. Use PACER to find out what John Does are left on the case and not previously dismissed by the Troll.
- What is the worst case scenario? I say worst case, but I have yet to hear of anything other than a default judgment. A default judgment is when a Doe decides to ignore the summons and make no effort to present a defense. If the Troll gets an idea the Doe will default, they will ask the judge to rule in their favor. This recently happened and a Troll was awarded $20K (http://fightcopyrighttrolls.com/2011/10/07/judge-alsup-grants-20k-default-judgment-against-two-alleged-file-sharers/). As I write this, there appears to be an effort by the Trolls to find some Does they can win a trial (non-default) against see this post (http://fightcopyrighttrolls.com/2011/11/06/trolls-and-shills-john-steele-uses-decoys-to-file-lawsuits-in-troll-friendly-jurisdictions/). Even if they can win an actual trial, they risk exposing all their methods, software, and collection agents in open court. They might get a win, but it will allow future cases to mount a better defense. If someone has information on a case that goes to trial, I would love to research it. Don’t get me wrong, a default judgment is bad for the person involved, as well as the rest of the Does. This is an area I don’t have a great amount of knowledge in, so please correct me if needed.
- Summons. If the Troll decides to name you, the court will issue a summons and the Troll will have to serve it on you. I don’t know the exact rules for service, but I expect there may be some differences between the States. After you are served, you are given a specific date/time to appear in court.
- Answer. The next step is for the defendant to file an answer to the claims in the complaint. The answer is a short response to each part of the complaint – either an admission, denial, or a statement of not having enough information to do either.
- Discovery. The judge will set a date for the discovery phase. During discovery, both sides exchange information, documents, and depositions can be conducted. A deposition is testimony given under oath and recorded by a court reporter.
- Pre-trial. While discovery is going on, pre-trial conferences occur with the judge. This allows both sides to present their arguments for trial (and basis of them) to the judge. This eliminates any surprises for both sides. Also during pre-trial, either side can request the judge deny evidence, witnesses, or arguments. The judge rules on any requests and the matter is ready to go to trial.
- Settlement before trial. After pre-trial, all information is out in the open and both sides (if they wish) can agree to a settlement. If no settlement is reached, the matter goes to trial. For a majority of civil cases in the US, settlement is the norm. Sometimes it is just more cost-effective.
- Trial. The trial can be decided by a judge or a jury. The Troll will present his case first. After he is done, the defendant can present a defense. The Troll has the burden of proving his case by a “preponderance of the evidence.” A preponderance of evidence is accomplished when the Troll shows that its version of facts, causes, damages, or fault is more likely than not the correct version. A simple way to see and understand this is to imagine a balance scale with the Troll’s evidence on one side and the defendant’s evidence on the other. If the judge or jury believes the defendant has so much as 51% of likelihood to not be at fault or negligent, the Troll will fail. Note: this goes both ways. The judge rules for or against the Plaintiff and issues an order. If found liable, the court will award damages.
- Appeal. Either side can appeal the decision to a higher court if they believe if was legally incorrect. The appellate court can dismiss appeal, hear it and affirm the judgment, reverse the judgment, or send it back to the lower court with instructions to correct any errors.
- Enforcement. After a judgment is final, the Troll may not file suit on the same basis against the Doe. If judgment favors the defendant, the Plaintiff must drop all claims. If the judgment favors the Plaintiff, the defendant has to abide by the ruling.
Deposition. What can you expect during a deposition? This is where the Troll will attempt to elicit admissions and/or other pertinent information from you and others who are relevant to the case. This is also where your lawyer will question Plaintiff and the agents who collected the Troll evidence. One question Plaintiff is bound to have to answer is why they did not issue “DMCA Take Down Notices” when their agents identified the alleged infringement activity. This is important as the Trolls claim the reason they go after the Does is it is the only “financially feasible” way to protect their client’s interests. If they were truly interested in protecting their client’s interests, they would be issuing DMCA Take Down notices to the ISPs in addition to suing people. A DMCA Take Down Notice is just an email or letter to the site (or ISP in these cases) telling them that the site (or IP address/subscriber) is sharing/downloading copyright protected material and to cease this activity. This is a “financially feasible” option for the Trolls. They don’t do this because they want the activity to continue. By allowing it to continue, they will have new cases and more money to go after. The Troll will likely depose the defendant and ask about who has been on the network during the time of the alleged infringement – family members, friends, guests, etc. The direct questions will be did you or other people on your network use BitTorrent to download the movie in question, as well as other copyright protected files. They will likely depose anyone who they think will aid their case.
Searches/Forensic examination. The Troll can request the judge issue an order granting them the right to forensically examine relevant computers equipment and systems to obtain evidence. This can occur prior to the deposition, but I believe it is more likely to occur after the deposition. The results of the depositions have the possibility to expand the scope of the search/forensic examination. I would assume the Troll will request the judge authorize an overly broad search (AKA: Fishing Expedition) of basically every computer/network device and ALL the data within them. The judge shouldn’t grant such a request, and the defendant’s lawyer should be objecting to it. Any searches should be limited to the known facts. This will generally limit the search/forensic examination to the following:
- · Firewall/Router – IP address, MAC address, how it is configured, and any logs. Some logs will be the internal IP addresses and MAC addresses of systems that connected to your network. Was your firewall/router password protected? If the device is wireless, was it run as an “open” wifi? Was communication between the firewall/router and the client computers encrypted (WEP/WPA/WPA2)? Any connection/traffic logs showing BitTorrent traffic over common BitTorrent ports. Did you MAC filter systems? MAC filtering blocks OR allows only specific systems to connect to your network. Blacklisting is good to prevent specific systems (like a neighbors) from connecting to your network. Whitelisting is good to only allow specific systems connect to your network. Please note how your firewall/router is configured. Whatever way it is configured, the Troll will try to use it to his advantage.
- o Run your firewall/router “Open” and the Troll will say you are “negligent” and thus responsible for the alleged activity.
- o Run it secure and the Troll will say that only the systems and people YOU allowed on the network could have done this and thus are responsible.
- · Computers (and other mobile media – CD/DVD/USB, etc.) – The Troll will be looking for evidence that directly and indirectly supports their position. If there are a large number of computers in the household, the agent will likely conduct an initial “fast” look to determine where to focus their efforts. The agent will likely use EnCase, FTK, or some other commercial forensic program to take a look at a “live” system and to obtain a forensic image for later lab analysis. Here is what they will initially be looking for. The scope of the search will be expanded based on the results of the depositions.
- o Presence of BitTorrent software. Type of BitTorrent software (Vuze, eTorrent, etc.). What they want to find is the same version of the BitTorent software their agent identified. When (date) was it installed on the computer – installed before the alleged infringement? The unused portions of the hard drive will be searched for indicators that BitTorrent software and torrent files were previously on the system (deleted).
- o Presence of the movie file in question. The agents will likely first search for the file in question via the MD5/SHA-1 hash. The hash is essentially a DNA-like fingerprint of a file. If they get a match, they have found the file. If they cannot find the hash, they will look for the name of the file and through the other movie files (.avi. mpg .mp4 etc.) to see if it was edited or changed in any way. The name of the file may be found in recently accessed file lists, old directory lists, and unused portions of the hard drives. Note: renaming a file does not change the hash value. Change one bit in the file and the hash value changes. They will also search the unused portion of the hard drives for evidence of the movie file.
- o Forensic services are expensive and time-consuming. The commercial software is good and the agents are used to searching for evidence. Due to the costs, the Trolls will likely limit their full system examination to the most likely systems after doing the quick live look. This can vary, according to what the judged limits or allows.
- o Bottom line – if the BitTorrent software and movie file is not on the system and there are no indicators that you are trying to hide (delete) evidence, you are doing good. The Troll can still claim you had plenty of time to securely delete the evidence, but it is a weak argument. Especially since if they were truly concerned about preserving evidence, they would have moved quickly and not kept pressuring you to settle with them.
Well sorry for being so long-winded, but I hope I covered all the main points.