Merits Of A Copyright Troll Case – “Tip The Scales”

Merits Of The Case

This is not a new topic, but it needs to be repeated once in a while.  As we have started to see more new cases and even some named defendants, I thought I would go over a term sometimes heard regarding these cases – Merits of the Case.

This is the strength of the case that makes it worth pursing in the courts. 

Now I need to caveat this to mean taking these cases to full litigation.  For the Troll and content owner, there is obvious merit to take these cases to the preliminary phase of obtaining ISP subscriber information via a subpoena.  It is very easy for the Troll to show the court they have Prima Facie evidence to support the allegation and get some sort of subpoena issued (Single Or Multi-Doe – depends on the specific court) for subscriber information.  The Plaintiff only has to show the following:

  • Title of copyrighted material (or at least an application for one)
  • Public IP address of alleged infringers (date/time)
  • Statement alleging infringement activity was observed (by some technical means) of the copyright protected work by the public IP address at a certain date/time.  For multiple Does, they will have some statement linking all the alleged infringers – Hash file of the BitTorrent Swarm.

The Troll knows that for a good number of the courts out there, getting ISP subscriber information is easy and barring some delays, will happen.  Once the ISP subscriber information is obtained, the Troll will start to contact the person via telephone, email, or letter.  The Troll assumes that you know what is going on, as most people would have already received the subpoena notice from the ISP.  The reason for this initial contact serves three purposes.

      1. Accuse the ISP subscriber of copyright infringement and extract a settlement from them 
      2. Collect additional evidence on who the infringer is, as well as any incriminating statements  
      3. See how willing the ISP subscriber is to settling – verses going on the offensive

So let’s assume you don’t pay the settlement demand or make any incriminating statements.  What are the merits of this case?  As each case and person involved is different, I will make a general statement.  Please adjust your analysis to reflect your particular situation. 

Troll Evidence

  • Public IP address resolves back to you as ISP subscriber (Pays the bill)
  • Your public IP address was observed taking part in the infringing activity

Now if you don’t understand the weakness of the public IP address, this may look pretty good.  In reality the evidence is weak.  The public IP address does not equal guilt in any sense.  Your Internet connection could have been used without your permission, even if it was secured with a password.  Your Internet connection could have been run “Open” and someone abused it.  Any negligence claim is just a threat that holds NO merit.  Recent court ruling have affirmed that there is no legal requirement (duty) to secure ones Internet connection or monitor what others do on it. 

As far as the firms/personnel who conduct the technical monitoring to collect your public IP address, they are “suspect” to say the least.  For argument sake let’s say they make no errors in collecting the public IP addresses that are sharing Plaintiff’s copyright protected material.  It still doesn’t change the fact that the ISP subscriber may not have infringed.  It could be another resident, neighbor, hacker, out-of-town guest, etc.  It is not your responsibility to help the Troll collect this information – Don’t talk to them

This is where the second purpose of contacting the ISP subscriber becomes important to the Trolls – They need you to talk to them and provide them some additional evidence.  Know the Richard Pryor Response – It gives the Troll nothing and shows you are not scared of them. 

So How Do The Trolls Get More Evidence?

Talking to you or others in the residence.  Eliciting any and all information about your network, computers, if you have ever used BitTorrent, and the people who have used the network.  If they can get you to tell them that a roommate or son downloaded the movie in question, they will use it to get you to pay or make a statement against the other people involved.  Even if you don’t admit anything, the Troll is going to gauge your level of fear to determine if additional pressure will get you to settle or run away (default).  

Discovery (Not the “Informal Discovery” papers from Prenda Law)

At this point the Troll has decided to name and serve the ISP subscriber with a summons/complaint.  This is the time to hire a good IP attorney to fight back.  This is a bit of a gamble for the Troll, because if all they have is the Public IP address, they are on “thin-ice.”  Once named/served, the defendant has a short time to respond to the allegations and basically state: I did it, I didn’t do it, or I don’t have enough information to answer certain allegations.  Failure to respond to a summons/complaint can lead to a default judgement in favor of the Plaintiff.  After the complaint is answered, the next phase is Discovery. 

Discovery will likely entail a deposition (interview) of the ISP subscriber to learn the details of the network, computers, BitTorrent usage, and the people who use it.  One goal is to elicit an incriminating response that can be used to force a settlement or as evidence in a trial.  People identified as using the network can also be interviewed for possible evidence.  The draw-back for the Troll is that the defendant is allowed to interview Plaintiff and the technical monitoring personnel who recorded the infringing activity.  This has never happened and the Trolls like it that way.  Exposing the details (and faults) of the technical monitor firms, their personnel, certification (or lack of them), and specialized software is an Achilles Heel that the Trolls keep well guarded.   

Another area of possible evidence for the Trolls is the ISP records for your account.  The Troll will look for any records of DMCA take-down notices for infringing activity.  Records showing no such notification against you are great as evidence, especially when the Troll claims you are a “serial” infringer.   Note: Many Plaintiffs don’t bother with DMCA take-down notices.   

Forensic Analysis

An even more unlikely event, but still a possibility is that all the computer and network devices in the residence will be forensically examined for evidence.  The cost of such an analysis is substantial (many thousands of dollars) and unless the Troll knows for certain that evidence is on the system(s), they are taking a HUGE risk.  As it has taken months, if not over a year to reach this stage, who is to say that any evidence hasn’t been destroyed during the normal course of running the computers OR by the defendant.  Yes, I know that destroying evidence is wrong, but there are people out there that will do it.  {Spoliation}  My point is that if they can’t find any direct evidence of the infringing activity OR even indirect evidence (showing its destruction), they are hurting.  A person doesn’t even have to destroy evidence, if the infringing system belonged to a guest user who is no longer present, the evidence left with him.      

Here Is What Makes The Merits Of Their Case Weak

  • Not talking to the Troll except to give them the Richard Pryor Response. 
  • Not replying to any “Informal Discovery” paperwork.
  • If served with a summons/complaint, hire a good IP attorney and make counterclaims
  • Deposition: No admission of guilt, BitTorrent usage, or knowledge of others who may have done this 
  • Forensic Analysis: No evidence of the movie in question
  • Forensic Analysis: No evidence of BitTorrent usage
  • Forensic Analysis: Nothing to show that evidence was possibly destroyed prior to analysis

Now this article talks about “Merits,” and not what a jury would decide.  As these are civil cases, the burden of proof is a “preponderance of evidence” standard.  This standard is met if the proposition is more likely to be true than not true. To put it in a visual term – think of a scale with the Troll case on one side and yours on the other.  If you can get the scale to tip even just 1% to your side (You 51% – Troll 49%), you will prevail.  Note: It goes both ways. 

So using the above mentioned scale, let’s look at the how a case would look if you followed my advice and there was no evidence supporting the Troll allegation.      

Now I can’t claim that all the people accused of infringing are innocent.  But along the same lines, the Copyright trolls cannot claim that all the ISP subscribers identified through their public IP addresses are guilty either.  It is their slimy business model that bears the responsibility of doing this.  This has yet to be tested in any full open trial and I doubt it ever will be.

DieTrollDie 🙂   

“Some ships are designed to sink…other require our attention.”

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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27 Responses to Merits Of A Copyright Troll Case – “Tip The Scales”

  1. Clearly a lot of work went into this post, and the links to the legal terms are important. Funny enough, NONE of the cases so far have addressed the issue of downloading “on the merits.” Us attorneys have only done a bunch of procedural stuff, a lot of posturing, and limited discovery.

    Where I clearly differ from your approach is that I would hire an attorney IMMEDIATELY UPON RECEIVING THE ISP LETTER [and I don’t care if it is me or ANY OTHER COMPETENT ATTORNEY]. The reason for this is that doing so invokes the ethical rules that loosely states “a plaintiff (troll) may NEVER call a defendant who is represented by an attorney.” Doing this early eliminates any phone calls or letters to the defendants’ homes, and no fishing expedition (or evidence gathering) is done. They must only deal with the attorney.

    If I were in a defendant’s shoes, I feel strongly that waiting to be served is waiting TOO LATE. At that point, you only have 20 days to respond, and no attorney will take a case on a moment’s notice to do a rush-job defense. Plus, if you get to the point where you are named in a lawsuit, you’ve already done something wrong and they believe they can win “on the merits.”

    • DieTrollDie says:

      Thanks Rob. I always appreciate your comments and I’m sure the Does do to.

      DTD 🙂

    • that anonymous coward says:

      There is merit in what you suggest, the problem is many of the lawyers offering “Help” are not actually helpful.

      “They have your IP address so you must be guilty, pay me and I can talk them, I know them, and I can knock down in the settlement amount.”
      This is advice that has been given to many Does looking for help from the EFF resource page. There was never any admission of guilt by the Doe to the lawyer, just fear and concern about being sued for $150,000.

      There are few lawyers, sadly, who offer a rate reachable by many of the Does. Retainers equal to the settlement amount, for the lawyer to just field some phone calls and letters seems excessive. I’m not insane, Randazza will disagree (Ohai Marc!), I do not expect lawyers to work for free but if the service is merely a shield from the troll and showing that the Doe will hire a lawyer to defend them should not take thousands of dollars.

      While there are more named cases than have been previously seen, there is still very little chance of being named in these cases if you have not spoken to the troll. Nearly every named case that I am aware of, involved the target having spoken to the troll and having made statements that can be made to look or were damaging.

      I am reminded of the “self help” motions that were offered by a lawyer at one point, the initial price was up there. The price was dropped soon after so more people could take advantage of them, the volume I am sure made up for the price drop.

      This is the inherent unfairness in these cases. It cost them $350 to hassle thousands of people with a case of questionable merit, and even if your innocent you need to spend thousands to defend yourself. Even if your successful in defending yourself against these sometimes ludicrous claims, there is no downside for the troll.
      The people illegally shaken down by Evan Stone in the case where he finally got sanctioned, they will never see a dime of the money back. The court gets a fine, the other lawyers get paid, but the people who paid just to avoid having him broadcast they were porn pirates get nothing.
      There is no penalty for them to have to pay for spending sometimes months harassing someone over and over to settle for something they might not have done. And when that case where they got the Does name is dismissed… it is without prejudice and they are free to continue harassing the Doe making threats to their good name.

      People who paid to settle claims over copyright infringement, who later discover there was no valid copyright and/or large damages were precluded by law have no recourse. Shouldn’t the court be held accountable for making sure the facts in the case are real before proceeding?

      And now I’ve made a wall of text again… such a bad habit on my part.

      • @that anonymous coward; To summarize: The legal system must be broken if it costs only $350 to pay the court to sue thousands of people at a time (plus the court gets $/pg when us attorneys and Doe Defendants look up the case each day), where the ISPs get roughly $45 per IP address lookup, the trolls get $$$$ thousands each time they scare someone into settling, the lawyers make $$ (sometimes $$$) to defend the cases, and WHETHER OR NOT A DOE DEFENDANT IS GUILTY, THEY STILL MUST SHELL OUT THOUSANDS OF DOLLARS. This is the definition of a broken system (or a rigged one at the minimum).

    • SJD says:

      When we are agree on values, disagreeing on minor things is not only OK, it’s healthy.

  2. Brad says:

    Thanks so much for all your efforts….This really helps people who cannot defend for themselves…your should be very proud of yourself…these troll lawyers must know that no one respects, likes or wants to be associated with them, what an awful way to live one’s life…it is career suicide…they will never be taken as serious people, when they die no one will say there is a hole that cannot ne replaced like I say and think about my father, they will just say what an asshole, good finally…and after that they will answer to God for there deeds…on a side not why hasn’t the ACLU jumped on this stuff…this is such abuse and tyranny, oppression of the poor and middle class…keep up the good work!!!!!

  3. Die Troll says:

    Maybe you should quit jacking off to stolen
    porn instead of trying to make $$$ off of some shitty blog

    • Anonymous says:

      Loving the Troll QQ.

      Must be really crappy for you guys, not getting any settlements anymore.

      Maybe you guys should start litigating cases instead of trying to make $$$ off of empty threats.

    • DieTrollDie says:

      Wow. I guess I hit a nerve.

      John is that you? If so, please stop drunk posting. You want me to “quit” jacking off instead of trying to make money off this blog????????

      OK. lets be perfectly clear to everyone out there. I don’t make any money off this blog. In fact I actually lose money considering the Domain registration, PACER fees, and mailing expenses. I can’t even write it off on my taxes. But hell – seeing some Troll get upset and post stupid comments… “Priceless!”

      IP address 50.77.50.222 = COMCAST business out of MN (Lookup shows Shakopee, MN 55379).

      NetRange: 50.77.48.0 – 50.77.63.255
      CIDR: 50.77.48.0/20
      OriginAS:
      NetName: CBC-MINNESOTA-16
      NetHandle: NET-50-77-48-0-1
      Parent: NET-50-76-0-0-1
      NetType: Reallocated
      RegDate: 2011-09-15
      Updated: 2011-09-15
      Ref: http://whois.arin.net/rest/net/NET-50-77-48-0-1

      OrgName: Comcast Business Communications, LLC
      OrgId: CBCI
      Address: 1800 Bishops Gate Blvd.
      City: Mount Laurel
      StateProv: NJ
      PostalCode: 08054-4628
      Country: US
      RegDate: 2001-12-21
      Updated: 2011-01-06
      Ref: http://whois.arin.net/rest/org/CBCI

      DTD 🙂

    • that anonymous coward says:

      Maybe you should quit trying to shake down senior citizens for their Social Security checks and get a real job 🙂

      DTD- Makes one wonder if you were a recent footnote in a MN case….

    • Guest says:

      No gloating? “Making money off of some shitty blog”? You’re one of those random pornographers that’s been hitting sites like Torrentfreak, aren’t you? You don’t mince words – you just assume that all sites that aren’t yours are making money and everyone’s a thief. You think this little hit-and-run message will somehow make things better?

      Here’s some news for you, buddy – what do you think you can achieve that the RIAA couldn’t? You think that people aren’t wising up to all this? Copyright holders squandered all their sympathy a full decade ago, especially for something such as entertainment that can be easily supplemented or replaced. And don’t think that this sentiment is unique to alleged pirates – when you have a track record of failure and collateral damage (against children, grandmothers, homeless people, wrongly named people, dead people, laser printers and iguanas) like the RIAA, people take notice. On an international scale. Treasure the meagre settlements you’re getting; once people are informed enough they’ll be coming for you, and not in the pornographic way.

  4. Subscribe says:

    Subscribe

  5. AC says:

    With respect to what evidence the trolls have, would they not also have the bit torrent client used and the specific version? This information is shared with a swarm, so I would assume if they have your IP they have that as well.

    It should be easy to show that if the client does not exist and never existed on your machine, you could not have committed the infringement. However the contrapositive is not true: if you do have the client, you did commit the infringement. This is another tip against the Troll’s case.

    • DieTrollDie says:

      Yes, the details of the Torrent client is recorded by the Troll agents. Having the same Torrent client/version on your system as the agent recorded adds some weight to the Troll side. Even if the Troll can find no evidence supporting their case, they will just claim you delted everything previously and are still a thief. They will even go so far as to point out any disk management, system ultilities, or other software tools that help clean up and maintain a system. They will say “look,” these are the tools used to delete the evidence. But this is all academic – the cases will never get this far for 99.9999999999999 of the people.

      DTD 🙂

      • AC says:

        “But this is all academic – the cases will never get this far for 99.9999999999999 of the people.”

        So true, but I think it’s a good thing to point out to assure people who are innocent that the evidence is on their side. I was very scared at first but as I learned what their case is built around through your blog and other blogs like it, I began to see how easy it would be to prove my innocence. Even if the case will never get that far, it helps me sleep at night to put together all the evidence in my favor. Tipping the scales so to speak.

        Like you said, it’s all about preponderance of evidence. So what’s more likely: that I’m a super sleuth who beat a team of forensic experts with tools that are available on every desktop installation, or that the program simply wasn’t there? It just seems to me each argument they put forth requires so much gymnastics to make it fit reality, while the truth is very straight forward and simple.

      • DieTrollDie says:

        Good points.

        DTD 🙂

  6. S.T. says:

    My personal adventure with the trolls has been over for almost a year now (thanks to houstonlawy3r for that), but I still check here every day waiting for the time when the trolls have their big downfall (and it will come).

    Seeing DTD post that IP brings up something I thought of a while back. I would love to see a case go to discovery and turn up evidence of Trolls or their operatives actually seeding these files to catch downloaders on purpose. Seems to me that would be highly damaging to their case if they were found to be setting up “torrent honeypots”. Sadly, youhavedownloaded.com is no longer up but just imagine if 50.77.50.222 was on that database….

    Lastly I was wondering if anyone can speak to this as I have not been able to find a clear answer. Are there any states that require digital forensic examiners to be licensed as private investigators? If so, couldn’t that be brought up in court with respect to the trolls using these offshore (unlicensed) companies to collect IP addresses and prevent that evidence from being used to subpoena ISPs?

    • DieTrollDie says:

      I briefly looked into Computer Forensic Examiner lic requirements. Some states require this, as well as others have Private Investigator type certification requirements. The Troll agents likely have some computer training, but formal certification (in addition to an IT degree) is a big “Well….” They probably also have no formal training in evidence handling and staorage. All this issues are important, but the Trolls are going to do everything in their power to prevent it ever reaching that stage.

      DTD 🙂

      • that anonymous coward says:

        DTD – better question how does an international corporation get certified to provide evidence in a US court?
        While some of them have setup shops in different states to make them look more believable, I’ve never heard any qualifications in expert statements beyond I know how the software works, it is special and never wrong. I’ve know how to look up ip addresses for at least 3 weeks now and I am an expert… trust me.

      • Anonymous says:

        In Liuxia Wong v. Hard Drive Productions, Inc. and Seth Abrahams v. Hard Drive Productions, Inc. Stephen Wong took Hard Drive to task for using unlicensed private investigators, stating it was a violation of the California Business and Professions Code sections 7520 and 7521. Steele and Gibbs settled that case ASAP so that claim was never put to the test, but this is definitely something to look into state by state. Prenda’s ‘forensics’ buddies don’t appear to even be trying to look legitimate, just like everything else Prenda does, so it is likely a house of cards that will fall apart if they ever let a case get far enough to challenge the ‘forensics.’

      • Anonymous says:

        Meant Stephen Yuen.

  7. that anonymous coward says:

    DTD – did you like the pretty pretty picture?

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