Wouldn’t you know it, but prior to departing on a little trip, I start to hear from Does and see on RFC Express something concerning a “Waiver Of The Service Of Summons.” I know what one is, but it is not the normal thing for a copyright troll to use. The hair on the back of my neck starts to stand up and I know this is not good. Yes, I’m a bit paranoid and don’t trust the trolls, so I start my inquiry. For those of you that don’t know what a “Waiver Of Service” is, here is a link – scroll down to (D) Waiving Service
Well I was able to obtain a copy of some Waiver Of Service documents for case 2:13-cv-00126-TOR, The Thompsons Film, LLC v. Does 1-35, Eastern District Washington. WS_Docs_Trolls
Take a read of the cover letter and you will see the troll, Mareen C. VanderMay, The VanderMay Law Firm PC, requests the recipient to contact them to discuss the case. The troll states that it is not their intention to name/serve persons not responsible for the infringement and would be happy to listen to any exculpatory evidence they have. Troll VanderMay goes on to state that they will not simply drop a drop because someone claims their network/Internet access was “hacked.”
The letter states that in 30 days they plan to name and serve the ISP subscriber – that is unless the responsible person is identified – and the troll believes you.
The last part of the letter is where the troll tries his hand at a little trickery.
The troll is trying to get the ISP subscriber to sign the waiver under the suggestion that it will save them (the Doe) money – the cost of service and related filings. The only way a “savings” will happen is “IF” the ISP subscriber is served a summons/complaint and the court makes an eventual judgment in favor of Plaintiff. As we have only had one case actually go to a trial (PA Bellwether) and a limited number of default judgments, this is an unlikely event at best.
The problem with signing the waiver is it starts the clock for the Doe to file an answer to the complaint. If the ISP subscriber does not file an answer (i.e. 20-Answer_00427(CO)) no later than 60 days from the date of the waiver, the troll can motion the court for a default judgment against the ISP subscriber. The troll omits this fact in the cover letter, but it can be found on page 3 of the waiver documents. In my opinion, many people will not understand these facts and will simply sign and return the documents.
I believe the troll is trying to use the waiver documents as a tool to increase pressure and get some of the Does to start talking to them. Once the troll decides she has gotten as many Does as possible to settle, I expect the motions for default judgments will be filed against the ones who signed the waiver and never filed an answer. The waiver does save the troll the cost of service, as well as gives them a way to effect a default judgment at a time of their choosing.
One note: This could come back to haunt the troll if a Doe does sign the waiver and then files an answer and makes counterclaims. The chances of this happening are slight (my opinion), but it could really mess up a Troll/Plaintiff business model. Sounds like a troll crap shoot.