“Show Me The Evidence” – Inculpatory & Exculpatory

I know I have discussed evidence in general in many posts/comments, but I thought it might be good to have a separate article on the topic.  So what exactly is Exculpatory and Inculpatory Evidence in relation to Porn Copyright Troll cases? 

According to the Legal Information Institute (LII), Exculpatory Evidence (EE) is “Evidence, such as a statement, tending to excuse, justify, or absolve the alleged fault or guilt of a defendant.”

Inculpatory Evidence (IE) – “Inculpatory evidence is evidence that establish the guilt of an accused. It indicates that a defendant committed a crime. Inculpatory evidence shows, or tends to show, a defendant’s involvement in an act.“

Some of you may say that since a vast majority of these cases never make it into the named & served phase (complaint), EE and IE is a moot point.  I believe a discussion of this topic is beneficial to the new Doe defendants, as it helps them understand what the Troll is claiming, as well as ways to refute it.  

So What Is The Troll Claiming?

The Troll is claiming on a specific date/time, their agents observed the public IP address attributed to your ISP subscriber account taking parting in the illegal downloading/sharing of copyright protected works belonging to Plaintiff.

Possible Scenario – A guest at your residence (large apartment complex) connects to your WiFi Internet connection with his laptop and without your knowledge downloads a copyright protected movie (Big Butt Monkey Love 3) via a BitTorrent client.  You may have given him the WEP/WPA/WPA2 password or even just opened up the network for a while.  The guest eventually departs and months later you get the ISP notice of a subpoena for your subscriber information due to an alleged copyright infringement.  Note: No DMCA take-down notices were issued to the ISP and passed to you.  Even if you have logging enable on the WiFi Firewall/Router (WFR), the logs showing what internal IP addressed connected to other P2P peers on an external network are long gone.  There will also be NO forensic evidence on your computer, as the offending system is no longer on the network. 

So far all the Troll/Plaintiff has is a public IP address for a set time/date of infringement.  For all of the federal courts, this will allow the Troll to get early discovery for ISP subscriber information for at least Doe #1 – some courts will allow all the Does in a case). Once they have the subscriber information, they will attempt to make some sort of contact with the ISP subscriber to seek a settlement.  You start to get settlement calls from the Troll and give them the Richard Pryor Response (RPR).  For this scenario, here is how the evidence looks so far –

Inculpatory Evidence

  • Public IP address associated with your ISP account for a specific date/time of infringement.

Exculpatory Evidence  

  • Statement from you that you did not infringe on Plaintiff’s copyright protected work.
  • No evidence of BitTorrent software or related .Torrent files on your computer.
  • No evidence of Plaintiff’s copyright protected movie on your computer.
  • No indications of spoliation of evidence.
  • No DMCA take-down notices were issued to the ISP and passed to you.
  • You WiFi Internet signal extends to multiple apartments in your complex.

In the above scenario, the Preponderance of Evidence (IE v. EE) is clearly in favor of the defendant.  Now be mindful that each courts/jury is different and the evidence can be interpreted differently.  For this scenario, unless you come across as a total lying dirtbag to the court/jury, you will prevail.  Now the actual evidence may never come out until discovery (if it ever happens), but every Doe should asses “their” situation (just like above) to see where they likely stand.  This gives you a great understanding of what the Troll actually has versus what they claim.      

What The Troll Wants

The only way the troll can possibly obtain additional IE and tip the scale is by –

  • Talking to you or another person with some knowledge.  I can guarantee that anything said to the Troll will be used as leverage to get you to pay the settlement.  It doesn’t even have to be an admission.  Tell the troll that you have caught you 15-year-old son watching online porn and they will try to use it against you.  “Mr. Doe, the fact your son watches online porn and we have your IP address does not look good.  If a forensic analysis disclose the movie or BT software, your son could be liable for up to $150K.  We don’t want to ruin his life over this.  My client is willing to settle for $3500.”  
  • Forensic analysis of the computer systems in your residence shows –
      • The copyright protected movie(s) listed in the complaint.
      • BitTorrent software installed on the computer.
      • Accessing Torrent Web sites (Pirate Bay, etc.).
      • .Torrent files showing probable BT activity
      • Evidence that shows the above were deleted or erased – destruction of evidence – spoliation.
      • Other copyright protected movies that appear to be illegally obtained.  The Trolls claim many BitTorrent users will have multiple copyright protected files on their computer.   
  • Forensic analysis of the WiFi Firewall/Router (WFR).  The Troll would love to find out your WFR did not have a default administrative password; you were running it secure (WEP/WPA/WPA2), WiFi Protected Set-up was turned off, and you were only allowing known computers to connect to the WFR via MAC filtering.   
  • Torrent Web site has email account or other information that can be tied back you. Many Torrent web sites require a user name and password to access the site.  These records are very unlikely to be available to Trolls, but it has happened before. 
  • Location of your residence (address the ISP has on file) in relation to other nearby buildings.  The Troll has a general idea on how far a WiFi signal will travel out from your residence.  The Troll will use Google Maps/Google Earth to see how many other location may have been able to access you WiFi signal.  The more isolated you are the better the Troll feels.

Talking to the Doe is the best option for the Troll, as it is cheap and often effective.  That is reason why so much effort is expended in making the letters and telephone calls so scary.  It is also the reason I stress the Richard Pryor ResponseAs far as forensic analysis, I know of no cases where it reached this phase in discovery.  It is extremely expensive and if nothing is found, the Troll is almost assured a loss.  I know of one Prenda Law case where a roommate provided a computer that once belonged to a Doe to the Troll.  Analysis failed to disclose any ‘smoking gun’ evidence, only some software that ‘could’ have been used to copy movies and wipe data.

Possible Exculpatory Evidence? 

Use the following list as a starting point in your EE collection efforts.  Please note that even if you cannot obtain some really nice EE, that does not mean you should give up.  As I said above, stating you didn’t do this is still EE.  The Troll only has the Public IP address collected by a questionable technical monitoring firm with obvious financial ties to the troll (i.e. conflict of interest).  Just because the public IP address is associated to you doesn’t mean you or the members of your family were the infringers. The goal of EE collection should be to make it clear to the Troll (if ever needed) that the “preponderance of evidence” is clearly in your favor.  Take good notes – record the date/time and the names of people who observed or have knowledge of the EE.     

The EE List

  1. You ran your WiFi Internet connection “Open” and didn’t know of any infringing activity.  Have since closed the connection or MAC filtered systems allowed on the network. 
  2. You didn’t know your Internet connection was “Open” or of the infringing activity. Have since closed the connection or MAC filtered the systems allowed on the network.
  3. Never received any DMCA take-down notices from Plaintiff for the alleged period of infringing activity. Didn’t know it was happening and when I found out I checked my WFR for logs. No logs were available because of the late notice from Plaintiff.
  4. Checked the logs on the WFR and identified unknown systems were using my Internet connection. I have screenshots of the unknown systems as well as notes detailing what I found.
  5. Check all the system in my residence and no BitTorrent software was installed on them.
  6. Check all the system in my residence and none of Plaintiff’s movies were found on them.
  7. Checked my systems in my residence and no torrent files (i.e. “Big Butt Monkey Love 3.torrent”) were found on them.
  8. During the alleged date of the infringement, my systems was infected by malware and had to be rebuilt by “Geek Squad.” Have notes and receipt for payment for any such work.  Note:  COMCAST and other ISPs often send out emails detailing when they detect possible malware infection from your IP address.  This is great EE!
  9. You had a lengthy power outage or something else that reset your WFR to its default configuration and default administrative password prior to the infringement date.
    Unknown who may have used your Internet connection.
  10. As you had WiFi Protected Set-Up (WPS) enabled, your WFR may have been exploited and Internet access abused by unknown personnel. WPS Vulnerability   List of Vulnerable WFR modles   
  11. Hard drive crashed (or WFR) during the period of alleged infringement. As it happened months before you were notified by Plaintiff, it was disposed of. If you still have the old HD or WFR, do not throw it away.

So many possible exculpatory reasons out there.

I will leave you with quote from a 23 Jul 12, Omnibus Order in which a Florida Court severed Does 2-120.  1:12-cv-20920, Sunlust pictures, LLC, v. John Does 1-120 (page 9).   Omnibus_Order_Quash_Sever_20920(FL) 

While the Court recognizes that the Doe Defendants have not yet asserted different defenses, the possibility of this occurring rises above the level of mere speculation. For example, due to the imprecise manner in which the Plaintiff identifies alleged infringers, namely by IP addresses, Defendants can assert an unquantifiable number of different factual scenarios to establish that they did not download the copyrighted work (the “it wasn’t me defense”). See In re Bittorrent Adult Film Copyright Infringement Cases, 2012 W L 1570765 at *5. Because it is common today for people to use routers to share one internet connection between multiple computers, the subscriber associated with the IP address may not necessarily be the alleged infringer and instead “could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper” Id. Therefore, “the assumption that the person who pays for lnternet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time.” Id at *3. Further, in the Complaint, Plaintiff concedes that IP addresses can change frequently due to their dynamic nature. (DE-1 at P11). As a result, the risk of “false positives” is high and can result in defendants maintaining a variety of “it wasn’t me defenses.” See ln re Bittorrent Adult Film Copyright infringement Cases, 2012 WL 1570765 at *4…

*** 12 Sep 12 *** Here is another Court order  (6 Aug 12) from the SDFL, severing Does 2-31 (1:12-cv-20922, AF Holdings, LLC, v. John Does 1-31).   Order_SeverDoes2-31_20922(FL)  In the order, the court is obviously frustrated with Troll/Plaintiff for not answering repeated questions on the specific details of how it uses IP address geolocation. 

But there was no explanation as to how this was accomplished despite this Court’s order specifically requiring a “showing of the precise methodology and technique employed by the Plaintiff in its use of geolocation to establish—to a reasonable degree of certainty—that the Defendant may be found within this district” and “that due diligence, as well as due care, [has] been employed in ascertaining that the IP addresses associated with the alleged tortfeasors are or were assigned to a system or node that can be used to reasonably calculate the identity of the alleged infringing party.” [D.E. 28 at 6].

Now if we can only get the courts to start questioning the software and personnel conducting the technical monitoring (6881 Forensics – Peter Hansmeier), we can start to have an effect on the subpoenas for ISP subscriber information.  

Also in this order, the court stated there is likely to be various defenses –

Some might claim to be victim to unapproved use of their home unsecured wireless internet network, and that an unknown (and likely unidentifiable) party engaged in the alleged activity. 11  Others may claim that their computer was infected with some variety of malware, and that if their computer engaged in the alleged infringing activity, it was not under their control. Others may simply invoke the “it wasn’t me” defense. Lastly, it may be claimed that their computer contained only unusable bits of data, not viewable or usable in any way unless they obtained more data allowing the file to be assembled into Plaintiff’s video.  Procedurally, some Defendants may move for summary judgment. Others may move to dismiss. A few may wish to proceed to trial. 12 

11 – This argument has already been raised by one defendant in her “Motion To Squash/Vacate” [sic] [D.E. 12].

12 – Despite Plaintiff’s demand for a jury trial, it appears that the majority of BitTorrent cases are filed without the intent to actually proceed to a jury trial.

Make sure you read all the footnotes – this judge likes to use them there are some good points – such as #12 above.

DieTrollDie 🙂

 

 

 

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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43 Responses to “Show Me The Evidence” – Inculpatory & Exculpatory

  1. Subscribe says:

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  2. Raul says:

    Great post as it puts things into a very clear perspective for worried Does.

  3. Spanish Doe says:

    Well., the issue is, what happens when you are a techie that constantly updating their machine, trying new OS’s and Distro’s. My home machine gets wipe and reset every six months or so, mainly for the fun of trying a new OS. My laptop of course is a different thing.

  4. bob says:

    has anyone tried pointing out, as EE, that the ISP (and/or a significant chunk of its networking staff) can impersonate any of its users? not only that, but an employee worried about their own file sharing activities with appropriate access might be able to change the records of what account had what IP address at a certain time?

    could something like that at least force the troll to dig deeper into the ISP (which then has motivation to fight) for evidence that the records they’re basing everything off of are actually legitimate?

  5. that anonymous coward says:

    Can we pretty pretty please make 1 thing REALLY clear?
    “No evidence of BitTorrent software or related .Torrent files on your computer.”
    Possession of a BitTorrent client is not illegal and proves NOTHING.
    Possession of a .torrent file is not illegal and proves NOTHING, unless of course it is for the alleged copyrighted work.
    Having multiple .torrent files for copyrighted works, yeah that will not look good and tip the scales against you as it is clear your a copyright infringer. But having multiple .torrents for various legal things proves nothing other than you use BT in a legal fashion.

    BitTorrent has numerous uses that are perfectly legal, and merely having a client installed should NEVER be assumed to show guilt any more than owning a car proves your guilty of hit and run.
    Showing a defendant has a working knowledge of BitTorrent technology does not imply anything criminal.

    If you play World of Warcraft, you have a BT client installed on your computer. Updates are mainly managed via a swarm of users sharing parts of the updates and the client gets them for you. Many people use BT and are totally unaware they are, it is an easy protocol for service providers to offer upgrades without having to host a central download site.

    One must be very cautious in making broad statements, “Well I’ve never had any BT client on my system!” but you could without ever knowing it.
    “I have never knowingly installed a standalone BT client.”
    “I have never downloaded the alleged work.”
    “I use BT, but have never downloaded the alleged work.”

    You can obtain all sorts of content legally for free via BT.
    Many *IX operating systems, music, movies, pictures. The Internet Archive recently posted a massive BT file, all of its contents are legal to download and share.

    minirant over….

    • DieTrollDie says:

      Rant away TAC. Point is well taken. BT is not illegal, but WILL be used as a negative by the Troll. As long as you can speak to how you use it legally, then it is not an issue.

      DTD 🙂

      • that anonymous coward says:

        It would be fun to end up in court with a troll who wanted to play that game.
        I’d end up with a contempt charge at the end of it, but I think I could make my point.
        Does counsel own a gun? Guns are used in crimes!
        Does counsel own a car? Cars are used in crimes!
        Does counsel take medication? Medication can be illegally sold or abused!
        I figure I can get about 8 of those out there before the gavel would come down to shut me up.
        BT is a tool, like thousands of other tools we use in a day. It can be used for good or bad, but possession of a tool is not evidence or proof except to those of limited imagination.

      • SpanishDoe says:

        Well., anonymous coward, to support your BT claim. Every linux distribution out there that I have tried comes with a BT client pre-loaded. Every one. Is are they Linux distros of the world, Ubuntu, Fedora, Mint and so on promoting torrent piracy?

      • that anonymous coward says:

        @SpanishDoe – I think you have completely misunderstood my point.
        My point is/was/remains that possession of the BT client is not proof of criminal behavior.
        That to raise the specter of they must be guilty because they have one or have ever used one is a spurious claim lacking a good foundation and hoping to make people look guilty simply for having one and ignoring every single legitimate use of the technology.

    • AC says:

      Also, the Opera internet browser, which I use, can download torrent files natively. Also some Linux distributions come with torrent clients installed by default. There is no conscious effort to install a bit torrent client in these cases, and clicking on a torrent file (even on accident) is enough to start the download process.

      • that anonymous coward says:

        And if you made a definitive claim to the court you never ever had a BT client, and provided a list of software on your machine and it included Opera or something else that ships with a BT client by default you would have lied to the court, and that would go horribly.
        My rant was based on the implication that having a BT client means you have to be guilty of infringement. Trolls like to claim this and ignore the facts that it is a neutral technology, it is not good it is not evil it is a tool.
        Could one could click a mislabeled link and start a torrent download without really knowing it? I do not have much experience with Opera, but these details are very useful to have on record.
        In the trolling cases from ages ago during the heyday of the Kazaa and eDonkey networks people would mislabel files on purpose, and then point out well they were trying to infringe anyways so they should pay me.

        My goal here is 3 fold
        1 – Keep people from making blanket statements that can burn them in court.
        2 – Keep people from assuming that BT by default is only used for infringement.
        3 – Point out that the trolls lie when they suggest that if you have/discover a BT client your guilty.

  6. Confused says:

    What are your opinions on someone who receives a DMCA notice and is told by their ISP to delete any infringing materials if present (so they do after a serach of the machine) and are then sued down the road? They did what they were told but now there would be spoilation.

    • DieTrollDie says:

      As in all aspects of these cases, it is best to keep very good notes and a record of all correspondences. If the ISP rep told you this via email, save a copy for “just in case.” If not, then just document the who, what, where, when, how, & why of the conversation.
      Take a look at the DMCA take-down letter. What does it say? Does it say anything about removing the content from your system?
      As far as spoliation, it is doubtful, as 99.99 of the cases will never make it that far. I would not tell the Troll this, as they will use it (or at least attempt to) against you. IMO if you did not know a copyright infringement case was opened, then there was no duty to protect such evidence from destruction. Couple that with what the ISP rep told you and it is understandable.

      DTD 🙂

      • AC says:

        There was a notice e-mail in my ISP e-mail, but it got deleted automatically by their default settings. So I feel I will be screwed somewhere down the line if something ever happens and I don’t have a copy of the letter. I don’t want to go to the ISP because it might put unwanted attention on me and I do t know how long they keep copies of the letters. The last thing I want them to do is to go bak to the troll with my info requesting the information again. Any input would be great.

      • DieTrollDie says:

        Was this a DMCA take-down notice or a possible malware infection from your IP address? IMO it is better to get the information from the ISP and know exactely what it states. I doubt the fact that you request a copy of the notice will make it back to the Trolls. Even then, “so what?” You lost your copy and need a new one. Doesn’t mean a thing.

        DTD 🙂

    • I have never seen a copyright troll send a DMCA takedown notice to an internet user using bittorrent software. Plus, DMCA notices are generally sent to websites (e.g., YouTube, PornTube, etc.) to remove media uploaded by users which violate the copyright holder’s copyrights.

      Obvious exception: Ira Siegel’s “pay us now or else we’ll sue you DMCA scare letters.” These are a different breed and are separate and apart from what a DMCA takedown notice comprises.

      • AC says:

        When you say what a DMCA take-down notice comprises…concerning the two examples discussed below. One just states that an alleged infringement occurred and list the details sent by the troll and nothing else. The other does the same, but starts the extortion right away.

        Are they takedown-notices because the ISP will forward what ever a copyright agent (troll) sends to a subscriber to maintain safe harbor status? I see nothing in either asking for the content to be removed.

        Could you elaborate?

  7. DieTrollDie says:

    Posted some additional information from Raul. Thanks! I have attached it to the end of the post.

    DTD 🙂

  8. Irritated Troll Hater says:

    I like this part in the last quote:
    “Lastly, it may be claimed that their computer contained only unusable bits of data, not viewable or usable in any way unless they obtained more data allowing the file to be assembled into Plaintiff’s video”.

    DTD, if you recall, I mentioned something similar to this in my email.

    If someone is downloading a movie, and they delete it before it is complete, it still shows the full size of the file(s) in the folder. The problem is you cannot play the file. It is not usable. I wonder though, if a Doe was in court with that unusable file on their PC, and the troll was pointing and screaming: “proof proof”, what would happen then if they go to play the file(s) and it does not play?

    Something else on my mind…. I know a troll can amend a complaint, but if only half a movie was downloaded, does it still warrant a $3400 settlement???

    Down with all Trolls

    • DieTrollDie says:

      Yes I do remember you stating that point. 🙂 In a civil case I think that could be a dangerous point, as it is an admission that there was some sort of attempt to download the movie. As the Plaintiff only has to show that it is “more than likely” (greater than 50% likely) that the defendant illegally downloaded/shared the movie, it could turn out bad. I’m sure the Troll would try to point out that the Copyright law doesn’t say anything about being able to view the whole movie. As even downloading/sharing a portion of the movie/file would be at least claimed to be “intent.” Many points could be argued, but I think I would focus on other points that have a better chance of success.

      As far as the “settlement” amounts go, that is an agreement between both parties that for the most part, the court will stay out of. If both parties agree, the court may say,”OK.” That is unless the amount is way over the top or it appears. As the Copyright Law allows up to $150K in stat damages, the courts will hardly bat an eye at $3400. IMO even $3400 is a crazy price for these movies.

      DTD 🙂

  9. DieTrollDie says:

    My point in listing what the Troll will look for was not meant to say BT is illegal or bad. The point is that for these cases, BT is a central part of the claim against the Does.

    Here is the basic Troll Porn Copyright case – On a certain/date, a public IP address associated with a Doe (information provided by the ISP) was recorded downloading and/share Plaintiff’s copyright protected work illegally via BitTorrent. If they can find the following evidence on a system(s), they will be happy –

    Plaintiff’s movie(s)

    BT software (The troll will have recorded what BT client (& version)) during the monitoring

    .Torrent file for the movie(s) in question

    Without these parts, the Troll can only infer things and suggest that you deleted/moved the evidence. Remember this isn’t a fact-finding mission they are on. This is a war to obtain as much money as possible from people. Note: It only takes 51% or greater belief that a defendant did illegally download/share Plaintiff’s movie in a civil court.

    IF BT is found without Plaintiff’s movies(s) on the system, then it CAN add a little more weight to their case. BT alone is not a ‘death-blow,’ but it can still hurt. As TAC points out, BT is ONLY a tool that can be used for good or bad. As long as you can speak intelligently on BT and how/why you use it, then it is nothing.

    Note: Even if BT is not found on a system(s), the Troll will just claim you deleted it. Go figure.

    My point in all this is to get the Does the information to do a self-assessment and see where they stand. If you have and use BT, then be prepared (as I’m sure TAC is) to defend your use of it if it ever comes to it (doubtful). I don’t see any cases ever going to trial if the Trolls can help it. If they are forced to expose the details of their technical monitoring set-up, the whole operation bound to come crashing down.

    DTD 🙂

  10. This was a good article because it informs the Doe Defendant that really there is nothing to fear because the weight of the evidence is on your side. The problem is that the lawsuits are not set up to go to trial, and copyright trolls will do anything to NOT name a defendant (it costs their client TIME AND MONEY to name, serve, and do “discovery” on a Doe Defendant). Instead, the issue is not who was guilty and who was not guilty, but WHO WILL PAY AND WHO WILL TELL THEM TO TAKE A HIKE. (shameless plug: sometimes accused defendants hire a lawyer to do this).

  11. DieTrollDie says:

    My point with mentioning the lack of DMCA take-down notices from majority of the Trolls is that the ISPs own the IP ranges and lease individual IP addresses to the subscribers. By issuing a DMCA take-down notice to the ISP for infringing BT activity, the Trolls could take a simple and cost-effective step in reducing piracy. They don’t. The ISPs have listed representative for DMCA issues and if they fail to take the simple step of notifying the subscriber of the notice, they could lose their safe harbor status. No ISP will risk this; they will take some sort of action to address repeated complaints/notices about their subscribers. The pending “Six-Strike” program (AKA Copyright Alert System) shows the ISP will take some sort of action (http://arstechnica.com/tech-policy/2012/09/six-strikes-internet-warning-system-really-truly-coming-to-us-this-year/). Too bad this program is so hidden in secrecy at this time. The lack of issuing DMCA take-down notice also makes it near impossible for the ISP subscriber to either check his WFR for any logs that may have EE or address security issues.

    I agree that the issue for the Trolls is who will pay, not who is actually guilty.
    P.S. Yes, sometime hiring an attorney is money well spent. 😉

    • AC says:

      I am trying to get some clarification on what a DMCA taked-down notice is.

      In the Settlement Letters, etc. section there is DMCA Notice of Action e-mail from Comcast to a subscriber. Is this a take down-notice?

      Thanks

      • DieTrollDie says:

        Yes. https://dietrolldie.files.wordpress.com/2012/05/td_notice1.pdf

        “Comcast has received a notification by a copyright owner, or its authorized agent, reporting an alleged infringement of one or more copyrighted works made on or over Comcast’s High-Speed Internet service (the ‘Service’). The copyright owner has identified the Internet Protocol (‘IP’) address associated with your Service account at the time as the source of the infringing works. The works identified by the copyright owner in its notification are listed below. Comcast reminds you that use of the Service (or any part of the Service) in any manner that constitutes an infringement of any copyrighted work is a violation of Comcast’s Acceptable Use Policy and may result in the suspension or termination of your Service account.”

        & here is another one – https://dietrolldie.files.wordpress.com/2012/06/ceg_settlement_dmca_email.pdf For this one, the Troll is trying to get a person to go to their “settlement” Web site and pay them.

        DTD 🙂

  12. anonymouse says:

    A broader point is that this is an extortion scheme, and extortion is highly effective psychologically, regardless of guilt or innocence.

    It might also be worth writing some articles about how to defend yourself in court from this abuse of the legal system for an extortion scheme even if you indeed did download the movies in question and have been named.

    • anonymouse says:

      As an example:

      Let’s say a politician is approached by the mafia, who threatens to go to the press with a story about how he solicited a gay prostitute unless he convinces the attorney general to overlook the mafia’s crimes.

      In scenario A), the politician did solicit that prostitute. It is still wrong to use this information as a threat.

      In scenario B), the politician did not solicit that prostitute, but the mafia has a photoshop expert on their payroll and has paid a prostitute to lie.

      Either way, the threat is real and persuasive, and either way the real issue isn’t about the alleged crime–it’s about the use of the claim of committing the crime to manipulate someone, that is to create a red herring to distract people from the crime the mafia is committing.

    • Brad says:

      OK here’s an article about a guilty person’s defense. Prenda’s “witness” Peter Hansmeier (or insert name of troll “witness” here) is not an expert by any means…he has zero background in computer forensics, nor does he have any requisite education. He receives a portion of the money from the settlements. Therefore, he is a witness who stands to financially gain from a guilty verdict. Incentive for perjury? I think so. Any competent defense attorney would have every single statement or declaration he’s filed stricken, and he would not be allowed to testify. So, they’re left with no evidence. For the record, none of these supposed “witnesses” would ever be allowed to be certified as “experts” much less be allowed to testify, nor would their evidence be admissible based on the financial arrangement between them and the troll attorney. After their so-called “evidence” is gone, they have dick. No evidence? Goodbye case.

      • DieTrollDie says:

        Sorry, I didn’t see any links to an article. Not a surprise to many of us here. I have more computer forensic experience and certs than
        Pete. His write ups are only good enough to get an unknowing judge to grant a subpoena. Otherwise it is deal. Can’t wait til judge questions them on the details.

        DTD 🙂

      • Anon says:

        Why is it that I cannot find ANYTHING about Hansmeier’s company on the Minnesota Office of the Secretary of State website? Supposedly it’s incorporated in MN, but it does not exist.

      • DieTrollDie says:

        The reason you cannot find anything is because that is what Prenda Law wants. Here is some more info, if you haven’t already seen it. https://dietrolldie.com/2012/02/28/down-the-rabbit-hole-prendasteelehansmeier-wonderland/

        Peter signs his declarations that he is in MN, but I don’t think 6881 Forensics is a MN company. Not that it is a real company anyway. It is a Peter Hansmeier/Steele/Prenda shell to make their BS technical monitoring set-up seem legit. This is just some bozo with some computer training (no forensic certification) that makes staements with NO intention of ever backing them up in court.

        DTD 🙂

  13. Anon says:

    That was the article 😛 No need to waste more than a paragraph describing how to impeach their “witnesses” and get their “evidence” stricken.

  14. psyp says:

    We got a subpeona letter from cox then we replied with an attorney notarized letter. Later on we recieved a letter from paul duffy of prenda law stating that since we replied to the ISP subpeona letter that confirms that we are behind the ip address accusing us of downloading a porn and asking for settlement. I’ve read the noob section on here and I’ve been following your posts I didn’t settle. I was waiting for robocalls but haven’t recieve any except they just recently sent me a letter advicing to seek an IP lawyer and demanding a letter from my lawyer. I have tried seeking for legal advice and the lawyer was asking $500 just to write a letter I think other IP lawyers are taking advantage of this scene as it is new to the law books. Should I ignore this letter? Coz I really don’t have that money to do this and these bastards won’t stop until they squeeze some money out of me, it’s starting to give me headaches.

    • DieTrollDie says:

      So what did you put in the attorney notarized letter you sent the Troll? The Trolls want you to hire an attorney, as even then they know they have a good chance of getting some money out of you. This is because most lawyers for civil matters will advise their client that setling may be the fastest way to may this go away. IMO just ignore the Troll and it will pass – that of course depends on what you said in the letter you sent. If it basically said you didn’t do it and you will fight them, then the troll has the same thing as when he started – Jack S$#!. That and a public IP address collected by a questionable technical monitoring set-up will get him nothing from a trial – except maybe having to pay your attorney fees. Trolls are greedy fools that try to trick people into paying.

      DTD 🙂

  15. worried dude says:

    So i received one of these letters in the mail today. What am I to do?? Just ignore it and have my information sent to this troll? Or do i get an attorney to try and quash it? I don’t know what to do and am really frustrated right now. I also checked my comcast email and have like 7 emails of copyright notices?? I wish this all would go away soon. Any advice would be great and helpful. thanks

    • DieTrollDie says:

      Dude,

      First, take a chill pill and clear your head. Which letter? ISP or troll letter? Assume an ISP notice. Start reading up on thee cases and get everything on your case via PACER & RECAP. If you are not in the jurisdiction of where the case was filed, my opinion is to lay low for now. If not, can you aford an attorney and do you have the will to fight? If not, lay low and learn the Richard Pryor Response. Next thing is to start a file with all this information. You said your ISP has various notices. This could be an indicator that someone was abusing your Internet connection without you knowledge or approval. You may want to check you WiFi Firewall/Router to make sure it is secure. Note anything unusual you find.

      Don’t start with the “I wish” line. It is way past this. Sorry but you are now involved and unless you want to pay out your hard erned money to a Troll, you have to learn how to fight back in a way that works for you – everyone’s situation is different.

      DTD 🙂

      • worried dude says:

        DTD
        I am most definitely willing to fight. I have already contacted an attorney and should be hearing back from him by tomorrow. I do believe I am in the jurisdiction. I will check on that. How do I go about checking my wifi firewall/router? I know my router is secure but with default password only. Thanks for the quick response

        Dude

      • DieTrollDie says:

        Refer to the Firewall/Router manual on the company Web site for details. Having a default password is not very secure. Review as the settings and what you discover AND record it – take notes and screenshots. Keep these as just in case records.

        DTD 🙂

  16. worried dude says:

    ok so i checked my router, nothing too fishy, but then again the log only goes back 24 hours. so should i try and quash the subpoena or just wait for them to disclose my info. I really don’t want my info out there.

  17. Pingback: Lipscomb Fishing Co., or “Exculpatory Evidence Request” | DieTrollDie

  18. Pingback: Update To The “Richard Pryor Response” OR What To Tell The Troll When He Calls | DieTrollDie

  19. PissedAtTroll says:

    Thank you so much for this article. It is easing my anxiety. A troll is after me for what I think is a very similar situation. He claims a movie was illegally downloaded and shared using bittorrent under my IP address , subpoenaed my ISP, and has been contacting me. I thought nothing of it, as I did not download that movie, nor did anyone in my household. I realize now that was a mistake. Too late. Now I know through a lawyer friend who looked up the case that he was granted a motion to subpoena me for discovery. I do not know how the movie was downloaded under my IP address. My wireless password is the same one my isp gave to me which is like a phone number, so I am guessing that is easy enough to figure out. I also live in an apartment complex. If I am served with this subpoena, I want to have together all of my evidence to respond to the court to get it dismissed. I do NOT want to face this nasty troll in discovery and have to get a lwayer. Maybe you can help me better understand the things that are still troubling my mind due to this troll:
    1) I do not think there was any DMCA take-down notoce. If there was not, will that be something I can use? If so, how? And how would I know if there was a DMCA take-down notice?

    2) As far as I know, what he has is: my public ip address linked to this infringement on the date, as well as other downloads using bittorrent for over a year. Therefore, I think I can use the preponderance of evidence you listed under exculpatory evidence to my advantage, but I do not know if I should include or how to include this exculpatory evidence in a response to the court once I receive a subpoena for discovery.

    3) Can the troll see anything else besides those downloads? Can he see how many devices were on the wireless, what websites were visited etc?

    4) Under what the troll wants, you state
    A) Talking with me. That wont happen unless it gets to discovery, and I am scared he would try to get me to say something if that happens, so I dont want it to get to that point.
    B) Forensic analysis of computers. . .How would he get his hands on any of my devices? How would he even know if I did or did not own a computer for him to look at? Is there some way for him to see that?
    C) Forensic anaylsis of WFR. How would he get this?

    5) You know of no cases where forensic analyis was reached in discovery. How do I keep it that way!?

    6) A lawyer friend thinks I should gather my EE and have someone who represents me (ie I would have to get a lawyer) send all of it to HIM to get him to drop it. I am of a mind to not give him a damn thing, and if I am subpoenaed for discovery, respond to the court with the EE. What do you think?

    Thank you again.

    • DieTrollDie says:

      If you haven’t already done so, please read these article. They are more current than this article.
      https://dietrolldie.com/2016/05/06/copyright-troll-poker-or-how-to-survive-this-troll-no-limit-game/
      https://dietrolldie.com/2016/06/15/the-dangers-of-talking-to-the-bt-copyright-troll-they-are-not-your-friends/
      https://dietrolldie.com/2017/02/01/richard-pryor-response-for-2017-have-a-coke-a-smile-and/

      Also email me at dietrolldie@dietrolldie.com with the specifics of your case (case #, jurisdiction, etc.) – I will not release your information. Doing this will allow me to better suggest options for you.
      So is this a case only against you or a group of John Does? Also, who is the Troll/Plaintiff? Some Troll attorneys/Plaintiffs are not very aggressive, while others are a pain in the rear.
      I assume you received the notification of the case via your ISP. I also assume the discovery you mention is for your ISP subscriber information being given to the Troll. When this happens, you will likely receive a settlement demand letter from the Troll attorney. You can find some examples on my web site – https://dietrolldie.com/settlement-letters-other-troll-correspondence/ I assume it hasn’t reached this stage yet. You said the Troll has contacted you – how so?

      Please check your WiFi device and see if you can tell if anyone else (unknown devices) is using your network. If you notice this, take screenshots and also write done what you find. Next you should change the WiFi password and not freely give it out to people. If there are other people who use your network, make sure they understand that using BitTorrent or other file sharing services is not allowed. If you have children/adult children, make sure they are not doing this and are just afraid to tell you. The goal is to stop the BT activity from taking place on your network. Many times people leave the WiFi password out in the open so guests can easily log onto the network. As you are in an apartment, many other people/devices could have done this. It sounds like you may want to write the Troll and tell them you didn’t do this and don’t know who did. Please see the Richard Pryor Response (RPR) article (https://dietrolldie.com/2017/02/01/richard-pryor-response-for-2017-have-a-coke-a-smile-and/).

      As far as your questions –
      DMCA Notices – The lack of them shows the Troll/Plaintiff doesn’t really care to try to slow or stop the piracy, but they are not required to send them. If they sent one to your IP address, the ISP would forward you the notice and tell you to stop the activity.

      Public IP address and BT activity for over a year – Did the Troll tell you this? Based on all the BT downloads/sharing, the Troll will try to determine who the likely offender is – male, female, approx. age, likely, hobbies, possible job, etc. He will then try to see who is the residence is a match. Not an exact science by any means – also if nobody matches, they don’t care – only that somebody will pay.
      What can the Troll see on my network – The only thing the Troll will know is public IP address, the type of BT client (s) used, the version number of the BT clients, and a list of the files that were available to be shared via the BT client using your IP address (network). The Troll will have ZERO information on how many devices are/were on the network at any time or what people did via Web surfing, etc.

      Talking with the Troll – The Troll would love to talk to you and try to find out who did this. The problem is he is not trying to be nice and help you. He is trying to find anything that will help him get YOU to pay thousands of dollars via the fear of a law suit. Unless you receive a summons to a deposition, the Troll cannot force you to talk to him AND it is NOT your job to help him do his – no legal requirement to assist him. Saying that, if may be beneficial to tell him you didn’t do it and you are not afraid to fight back.

      Forensics – This costs lots of money for the Troll and in no way guarantees evidence will be found. Most Troll/Plaintiffs NEVER reach this stage. Malibu Media was the Troll who most often used this. Even then, if they didn’t find evidence, they claimed the Defendant destroyed or simply hid computers/evidence from them.

      Lawyer – If the Troll amends the complaint with your true name (not just “John Doe”) there is a good chance he will have you served with a summons/complaint. Getting a lawyer at that time may be a good idea. You can fight back on your own, but it is harder.

      Please email me more details on the case and I will tell you what I see.

      DTD 🙂

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