I have been toying with the idea of writing another article on how to do a basic ‘Answer’ (denial) to a complaint/summons from a Copyright Troll. I don’t want to make it seem like it getting served a summons/complaint is something to be taken lightly. It isn’t. I will first suggest that anyone in this situation consult with an attorney knowledgeable and experienced in dealing with the Trolls. Get as much information as possible and weigh your options. For some people, filing an ‘Answer’ Pro Se is the best thing to do. The cost of an attorney will not be cheap; but the service provided is often worth it. I will caution those that decide to go Pro Se that you will likely have a bit of an uphill struggle but it could work out in your favor.
The reason I’m doing this is because I have started to see a few Trolls start or increase the number of ISP subscribers they are serving. I believe this is not wide-spread, but with the continuing filing of mass-Doe copyright infringement law suits, it could increase. The Richard Pryor Response (RPR) is still good, but you need to be prepared if it doesn’t work. In fact I think giving the RPR as soon you find out about the case OR in response to a settlement letter only adds more credibility to an answer. It makes the Trolls think twice.
I believe some of the Trolls are serving people because the settlement letters are not bringing in the cash like before. Some Trolls may believe serving the ISP subscriber has a good chance of bringing them to the settlement table. The Troll doesn’t really care if the settlement comes from the Doe alone or through an attorney. Now there is some risk that a defendant will get an attorney and make counterclaims, but this is not a huge one. Still it will happen – it is only a matter of time.
If you haven’t noticed, I have a ‘Defendant Answers’ page on my site and it has some templates to get you started. I will caution anyone considering this – tailor the answer to YOUR situation and DO NOT simply put your name to one and file it. I will also caution people on filing an answer that contains false or fraudulent information – not a good idea. But if the situation warrants and you have the fortitude, have at it. This denial answer is very basic and kicks it back over to the Troll for action.
What You Need To Do
- Obtain a copy of the latest complaint for your case; this is usually the First Amended Complaint (FAC) and associated Exhibits. This will be a complaint where the defendants are ‘Named’ and not John Does.
- Get yourself an Answer template. Basic_ProSe_Answer
- Open up both documents side-by-side and start to fill out the template.
- Replace all the highlighted portions with information from the Complaint and Exhibits.
- For this exercise, I have used a Dallas Buyers Club LLC, case (52 Does) out of the IL Northern District. Case 1:14-cv-01639. Complaint_01639(IL) Complaint_Exhib_01639(IL) Note: This particular case may get dismissed, as the judge told Plaintiff it has until 9 Apr 14, to submit a memorandum on why this case should not be broken out into 52 separate cases (with 51 additional filing fees! – 51 x $400 = $20,400). Notice_Doc_12_01639(IL)
- Still, this complaint is likely almost exactly the same as other Dallas Buyers Club LLC, cases. As more Dallas Buyers Club cases are likely to be filed, this is a good one to use.
- Once the answer is filled out, print it and double-check the names, dates, and general readability. Here is an answer minus the true name of Defendant/John Doe #1. Basic_ProSe_Answer_01639(IL) If everything is fine, sign the answer & certificate of service, and make two copies. Original document to the court; 1st copy to the Troll; 2nd copy for your records.
- Mail the answer to the court and Troll. You can obtain the mailing address for the court from their Web site or by calling the clerk of the court.
- Monitor PACER to see when it is posted to the docket.
After the answer is filed, you may get a call or letter from the Troll asking to discuss a settlement. This may be unpleasant, but you will need to start talking to them. The Troll will use this time to assess how serious you are, what evidence he is likely/unlikely to find, as well as to possibly gleam additional information that may assist them in getting you to pay a settlement. Be careful what you say.
First ask them what they are offering and listen. Most will offer some sort of reduced amount (compared to the original amount in the letter) just to avoid any additional hassle. If you want a full dismissal with no settlement paid, make that point clear to them. They are unlikely to agree that easily. They will likely tell you that they will simply depose you, other residents, and conduct a forensic examination of the systems in the residence. This is a possibility, but not a great one IMO. The cost to Plaintiff in doing this is significant – upwards of a couple thousand dollars alone just for the forensics on one system. Simply tell them that after they do this and find no evidence, you will make a motion for a summary judgment in your favor. This is a real risk to Troll/Plaintiff. They know that without something else to support their case, the public IP address they recorded is seriously weak evidence. It is so weak that some courts may consider it a violation of FRCP 11 (Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions) and could result in sanctions. Now a court could deny the motion for a summary judgement, but that simply put the same evidence in front of court/jury. Unless you have an image problem and/or come across as unbelievable, Plaintiff is at a serious disadvantage.
Hypothetical Example: An authorized guest at your residence uses his laptop to download/share the movie in question via BitTorrent. Note: The network is password protected and you provided the password. You had no knowledge of this activity and didn’t authorize or assist him in doing it. The deposition discloses he was in the residence and used the network at the date/time of the alleged infringement; and you had no knowledge that he did it. The forensic exam of your systems fails to disclose any direct or indirect evidence of copyright infringement of the Plaintiff’s movie. The only thing Troll/Plaintiff has is a recording of your public IP address as downloading/sharing the movie on the specific date/time. If the Troll does not follow-up with the guest, they have left open a ‘huge’ unanswered possibility. Now the Troll/Plaintiff can claim that the guest was made up (you lied) or that you simply removed/destroyed the offending system (spoliation) prior to the forensic exam. Without any real evidence to back it up such a claim, they will be seen as bad losers. Now if the network was run ‘Open’ (no password), it becomes even harder to show that defendant did it. The Trolls know how difficult it can be to actually ‘fully’ litigate these cases – That is why full trials do not happen in these cases.
As I have indicated, a Pro Se answer is not guaranteed to work (every case/situation is different), but I believe it can be an option for an innocent person that cannot afford an attorney. The Troll/Plaintiffs know that their dragnet catches innocent people, but to admit this calls into question ‘their’ motives, evidence, and tactics. Filing such an answer is certainly better (IMO) than allowing a default judgment to happen.