“Copyright Troll Poker” – OR How To Survive This Troll “No-Limit” Game

PokerCheat1*** Update (10 May 16) – Just in case anyone thinks I’m practicing law by providing my opinions and thoughts – I’m not. PERIOD. If you need an attorney, please hire one. Also remember that you get what you pay for. I make no money or receive anything from this blog – that is not the purpose. ***

So I decided to title this article (it was going to be a Podcast, but was too long), “Troll Poker,” or a primer on how to survive this Troll “No-Limit” game. AND it is a “Game,” in my opinion. The “game” is to make money and damn the little people involved. The Trolls and the Copyright owners will claim that it is the individual infringers who are to blame and they are just doing what is their right by law – “It the thief/pirate didn’t download/share the copyright protected content, then they wouldn’t be in this mess.” On a very basic/simplistic level this is correct. The Troll attorney and copyright owner then rationalize their douche-bag actions as fair and righteous; when it is anything but.

I liken BitTorrent (BT) Copyright Trolling to playing Texas Hold-em Poker. The problem is for most people, their knowledge of this “game” (BT Copyright Trolling) is limited, as well as the Trolls (Copyright Owners & Troll Attorneys) having a larger bank-roll than most of us (if not all Does/Defendants). Now I really enjoy Texas Hold-em, but my tolerance for risking large amounts of money is not very high. I have a pretty good idea of my limits and adjust my strategy and tactics accordingly.

For this article, I will primarily be talking about the Voltage Pictures and Malibu Media/X-Art cases copyright infringement cases, but it can generally be applied to any other BT Copyright Troll out there or for any new ones that pop up. Poker (much like BT Copyright Trolling) is a game in which luck is a factor, but playing the odds and “knowing” your opponent goes a long way in deciding the outcome.

Even before the fun begins, you need to ask yourself

  • Are you even playing the “GAME?” If you are worried about an email notice you received from CEG-TEK or Rightscorp, relax. You haven’t even sat down at the poker table and been dealt your cards. Ignore the offer to “play” with the Troll and ensure the BT activity that brought about the email notice stops; – and doesn’t start back up again – simple.The bottom feeding Trolls will then move onto other unsuspecting people to scare into paying.
  • Have you received any official notification from your ISP or the court?  For the rest of you, I assume you have received some sort of letter/package from your ISP informing you of a Federal Copyright Infringement law suit was filed – either against your IP address singularly (John Doe IP address 123.45.67.890) or as a group (John Does 1-17).  As well as the Troll has been likely granted Early Discovery to obtain the subscriber information on your ISP account – Name, address, etc.
  • My first suggestion – How did this happen? – try to determine how this happened. Was it you? Was it another authorized network user? A neighbor using your network?, Roommate?, etc.
    • I suggest resecuring your WiFi password and only giving it out once you determine that authorized users are NOT running BT. (Yes I know BT isn’t illegal – this is an immediate action to hopefully limit further recording by the Troll of any BT activity on your network.)
  • Check you WiFi Firewall/Router logs (usually VERY limited on home Firewall/Routers) for any unknown systems that were connected to your network. See you device manual for specific instructions.
    • If this is found, take screen-shots (save them!) and write down all the details – IP address used, MAC address, date, time, etc. The logs will NOT be for the time period the Troll is citing in the complaint, BUT, it will show that you found unknown computers/systems using your network. If it happened once, it could have happened before.
    • Don’t lose this information. Don’t worry too much if you cannot find anything – logs/records on these devices are VERY limited in nature. It still could have happened.
  • Social Media is NOT your friend.  Secure your Social media accounts (Lock-down ALL of themPERIOD) – not just Facebook. LinkedIn, Google+, YouTube, Twitter, etc., etc.
    • Do this early, especially if this is a Malibu Media/X-Art case. Once the Troll has the subscriber information from the ISP, they will likely start to collect any/all social media information they can. Now I’m NOT telling you to go and delete any information, I just wouldn’t make it easy for the Troll to freely collect information on you – restrict/cut-off access is my suggestion AND it is your RIGHT to do so.
    • The Troll can easily take something as simple as a Facebook “Like” of the HBO series “Game of Thrones” and claim you are the likely infringer because the “Other” files being shared via a BT client on your public IP address contained pirated copies of the Game of Thrones series. They could also see that you are an amateur photographer and claim that some pirated photography eBooks and photo-editing software (Adobe Photoshop) indicates you are the infringer.The goal is to make it as hard as possible for the Trolls to get any type of edge on you.
  • Motion to Quash? For a majority of people, filing a motion to quash the ISP subpoena is going to be a waste of time (my opinion). NOTE: A few courts are not taking the Trolls prima-facie claims of proper jurisdiction on face value – I don’t think this will kill these cases, just that the Troll is going to have to make more of a show with some judges at first.
  • Who is the Troll? Next you should determine who is the Troll/Copyright owner who wants to play, as well as the local Troll attorney, type of case filed (single-Doe or Multi-Doe), and any other notable tactics they like to employ.
  • I would suggest you sign-up for a PACER account (https://www.pacer.gov/reg_pacer.html) and review the case docket. Please see the examples/Links on the blog – I have a copy of a case docket and some files from it. Monitor the case at least weekly – any new activity?
  1. Example: Dallas Buyers Club case in CO. Multi-Doe – 16 John Does. The local Troll running this case is Troll David Stephenson – not known to be an overly aggressive Troll.
  2. Example: Cobbler Nevada case in WA. Single-Doe case. More aggressive – as this is a single doe case (they appear to be more confident with the single Doe cases). Still not as aggressive as the Malibu Media Trolls. They do seem to like depositions – IF the courts will authorize them.
  3. Example: Troll is Malibu Media/X-Art in the Northern District of CA. Single-Doe case. Malibu Media is known to be aggressive even when the evidence clearly shows the defendant wasn’t the offender. When that happens, they try to force a defendant to accept a walk-away deal and not have to pay Defense attorney fees/costs.  *** NOTE: Malibu Media may be have a bit of a melt-down in the works – see the 18 April Fightcopyrighttrolls article.
  • To send a settlement letter or NOT. In general, the Voltage Pictures Trolls are going to send out some sort of settlement demand letter OR possibly a VERY generic letter stating the allegation (case #, etc.) and that YOU NEED to contact them to resolve this issue.
    • Malibu Media is NOT going to send you a letter. They have invested too much time and effort in being known as a hard ass to do that – their reputation speaks for them. They also like to point out that they don’t send settlement letters like the others – for some reason it makes them think they are not a BT Copyright Troll. When in fact they are simply Prenda Law’s slightly smarter cousin.
  • I would suggest you do some research and note the defense attorneys who are experienced with the BT Copyright Trolls. I don’t suggest a general attorney (Non IP attorney) who doesn’t understand how the BT Copyright Trolls work. See if these attorneys give free consults or reduced rate consultation. NOTE: The old saying is true – you get what you pay for.
  • Regardless of who the Troll/Copyright owner is, I generally advise against contacting the Troll.
    • There are exceptions, but even being totally innocent is NO guarantee the Trolls will back down when you show them the proof.
    • You are NOT going to be able to convince them that you, your family, roommates, etc., are not responsible. PLUS, you run the risk of saying something that the Troll could be use against you. Even if you do not say ANYTHING incriminating (because your innocent!), you could sound so nervous that it tell the Trolls that additional pressure will likely result in a settlement (Verbal & Non-verbal clues OR “Tells” in Poker)
    • Don’t ever believe these actions are simply “justice” for the Copyright owner. They are simply based on “GREED.” 
    • Even if you say something incriminating during settlement negotiations (They generally cannot use this against you), it will give the Troll insight into how successful they will be if they apply pressure – if they have to.
    • I would also recommend you reference FRCP 408 (Compromise Offers and Negotiations) in any/all negotiations with the Troll. “As a matter of general agreement, evidence of an offer-to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim.”
  • For the multi-Doe cases (like the CO DBC case I mentioned), my suggestion is to stop the BT activity AND don’t respond to the Troll – calls, emails, letters, etc.
    • For the Multi-Doe cases, there is NO way a Troll can name and serve ALL the Defendants – PERIOD. For that 16 Doe case in my example, the Troll appears to have received settlements from 6 Defendants (Settled With Prejudice). He dismissed 10 Defendants Without Prejudice – No settlements, and named ONE person. So what are those odds? Overall assessment – 1 in 16 = 6.25% chance. Now that is a very simplistic assessment. In reality, more facts likely come into play.
    • So for this case, if the Defendants simply didn’t respond to the Troll, there was a 93.75% chance they would eventually be dismissed. OK, let’s only use the Defendants who didn’t voluntarily settle (11). 11 Defendants – only one of them was named and served. 1 in 11 = approx. 9.1% chance. 90% of not being named/served is pretty good odds!
    • There was likely some reason as to why the Troll decided to name and serve this person. Maybe the Defendant talked with the Troll and they said the wrong things. Hard to say why.
    • Now for the Malibu Media/X-Art cases, the chance is much greater. As I said the Troll uses this as his reputation to scare people. This is like going head-to-head against a World Series of Poker Champion. You can do it alone, BUT it isn’t a simple or easy matter.
  • So what happens next if I don’t pay the settlement or engage in negotiation? You have “Checked” (a Pass in Poker) and it goes back to the Troll. The Troll now has to decide what his next move is. – Send more letters – claim to “escalate” the matter – talk is cheap.
    • They can also seek approval from the court to depose the ISP subscriber prior to formal Discovery. Most Troll don’t do this, but some in the US North West prefer to do this. NOTE: Most courts now are NOT going to approve this anymore. If this does happen – consult with an attorney.
  • If the “Game” (case) reaches this point, the Troll is likely to take one of these actions:
  1. Leave the case open (not named or serve anyone) – for as long as the court will allow
  2. Amend the complaint (Name the Defendant – but not serve the him/her)
  3. Name and serve the defendant
    • Attorney John Whiatker’s view is that if a Defendant does not sign the WOS, then the Troll have to pay a process-server – He can then file a motion with the court to recoup the service fee ($75-100), as well as the cost of writing a motion to recoup the process-server fee – because the Doe did not sign the WOS.
    • As I haven’t seen a Troll do this, I’m still of the opinion not to sign. In my view, if the Troll actually wants to serve you (and scare you) he is going to pay someone to do this. If Defendant doesn’t sign the WOS and the Troll never pays a process-server, then there is NO issue.
    • IF a person does sign the WOS, then they MUST then file an answer with the court. OTHERWISE a default judgment is very likely.
    • Now the Troll doesn’t want a default over a settlement – getting money from the Doe (Voluntarily) is much more preferable than trying to enforce a default judgement. Also, more and more courts are simply awarding the absolute minimum damage award of $750 (per movie/file) and attorney fees & costs. For a Voltage Pictures case, this could mean an award of only $750 + $1800 – 2500 (Fees/Costs). It of course could be much more – each case/court/situation is different.
  • Delay of “Game. The court is eventually going to tell the Troll to name and serve the Defendant or to dismiss the case before the court does for failure to prosecute. Each court/judge is different – so time frames will vary. Federal Rules of Civil Procedure state that a Plaintiff NOW has 90 days (it was 120 days) to name/serve the Defendant. For these cases, this is generally 90 days after the ISP provides the name of the ISP subscriber. Note: Some courts have no problem letting the Troll bust this suspense by weeks and months! If it goes past 90 days, a Doe can motion the court to dismiss the case due to failure to name/serve – prosecute the case. Be aware that if a Doe does this, the Troll may go after that specific Doe and name/serve them – It sends a message to other Does and serves as “Pay Back!” Sometimes an anonymous letter to the court asking for them dismiss the case goes a long way. The Doe could explain to the court way the letter is anonymous – fear of reprisal.
  • Malibu Media/X-Art will generally name and serve a defendant to bring them to the negotiating table or to force the settlement if it has stagnated. Even if a person does default, it simply builds up the reputation of Malibu media/X-Art – ignoring them will NOT make this go away.
  • For the multi-Does cases (like the example), the Troll will either dismiss ALL the remaining defendants (close the case – WI Cobbler NV case example) OR dismiss all but one Defendant – One named Defendant per case is manageable.
  • Troll Raises the Stakes/Bets. Once a Defendant is named and served (Process server OR WOS), they have a limited amount of time to “Answer” the complaint –
    • To “Answer” the complaint, you have to “admit,” “deny,” or say you “don’t know” to each allegation in the complaint. It is usually 21 days if served OR 60 days if the WOS is signed.
    • Failure to “answer” the complaint after service can result in the Troll seeking a default judgment – Troll tells the court that the Defendant ignored the summons and thus he wants him to rule in favor of the Troll.
      • Damages can range from a min of $750 per movie/file to a Max of $150K per file. PLUS attorney fees and costs – likely around $2.5 – $3K.
  • GOING ALL IN.  You may ask, why doesn’t the Troll serve all of the Defendants OR why doesn’t he file single Defendant cases against the non-settling Defendants & then serve them?
    • Managing/running a cases takes time and money – especially if a defendant is fighting back – Pro Se or via an attorney.
    • It costs more money to run a case where the ONE Defendant is fighting. Also the risk of a loss increases – there is no risk by not naming/serving – only that they are likely to get some settlements
      • In the Elf-Man v. Lamberton case, the Defense was awarded approx. $100K and the case was barely into Discovery.
      • Discovery is a Two-way street – the defense can depose key Plaintiff witnesses, experts, information/evidence on the BT monitoring can be examined – IPP/Excipio, etc.
      • Depositions are costly
      • Copyright owners like Collette Field do NOT want to be deposed repeatedly
      • Computer forensics are expensive – Forensic consultants are on par with good IP attorney rates – $300-400 min per hour. How long does it take to image a 1 TB hard drive? How many hours of analysis will it take to find direct evidence or spoliation? What if nothing is found?
      • For most of the Defendants, if the case reaches this point, their money (if they had any to begin with) has been depleted by the attorney fees. Even if a Plaintiff did win – there is unlikely to be funds to pay the damage award & legal fees/costs.
    • These cases – Troll business model – were built to obtain settlements with as little actual case/court work as possible. TEMPLATE BASED The more the Troll has to do, the more it costs them – Less Profit. They may claim they will simply increase the settlement amount, but it eventually reaches a point where the Defendant isn’t going to be able to pay the damages and what was actually spent by the Troll.
      • The PA Bellwether case is a prime example of this.
  • Now Malibu Media/X-Art is known to run cases to a point where Defense costs and stress are high enough to get a Defendant to accept a walk-away deal – both sides cover their own legal bills.
    • This reinforces Malibu Media/X-Art/Troll Lipscomb’s reputation of being a hard-ass. The word gets out that it is cheaper and less stressful to simply pay the settlement demand in the beginning, rather than fight it out.
      • They supposedly start off with wanting $750 per movie – 10 movies = $7,500; 20 movies = $15,000, etc. I think there is a chance of reducing the amount, but it is likely an uphill battle.
      • If a person defaults (doesn’t answer the complaint), Malibu will often seek three-time the minimum amount per movie – So $2,250 per movie PLUS attorney fees/costs.
      • Default judgments look good, but it can be a pain in the rear to actually be able to collect any damages. The Troll may end up selling the debt to a collection agency for pennies on the dollar.
      • Here is one recent default judgment where the court only awarded the MINIMUM $750 per movie – for 127 movies the total damage award was $95,250!!!!! Case number 1:15-cv-01700 (MD), Doc #20. I would love to hear what settlement amount they start out with on a 127 movie case. The attorney’s fees/costs was only $ 1,632 – which if you figure at $300 an hour (I don’t know his rate) = 5.44 hours of work – See, minimal work for maximum profit – business model. Not that they will be able to collect from this Defendant.
  • Judge or Jury Trial: Then jury selection (if Jury trial), opening statement, plaintiff’s case presentation, defendant’s case presentation, plaintiff’s rebuttal case, closing argument, jury instructions, jury deliberations, verdict, and judgment.
  • If none of the motions are approved – dismissed or summary judgment, then it will go to a Pretrial conference.
  • Now if the case finishes up with Discovery, the Troll will likely motion the court for a summary judgment (ask the court to rule in their favor) OR motion to dismiss the case (without prejudice) for some reason – allows them to cut and run. We are seeing this right now with the Ricupero case in OH – See FCT and DTD for posts on this case.
  • Take a listen to the PA Bellwether Trial (search my site) for an example of the ONLY BT Copyright Troll case to ever go that far – AND it ONLY was because the Judge mandated it. ALSO note that it was a “show trial,” meaning that the Defendants agreed to plead guilty and NOT fight back or ask embarrassing questions – for this, they received something in return – as it was a secret agreement – we don’t know. 
  • So essentially this will boil down to the Troll attempting to get up and walk away from the table prior to having to seeing the “River” card (Last dealt card) – final round of betting, and the showdown.

Playing poker when the stakes are reasonable can be a challenge – Playing when it goes high stakes (your livelihood, finances, health, etc.) is nerve-racking. By knowing your opponent you can reduce the stress and better be able to make the decisions that are right for you.

The biggest problem with this game of “Troll Poker” is that it DOESN’T ever reach the “Showdown.” The Trolls/Copyright owners will claim that it does and the PA Bellwether trail proves I’m wrong. Well, ONE case out of how many to date??? It ONLY came about when PA court forced the issue. Troll Lipscomb them struck secret deals with the three Defendants to avoid any real details being released to the world. So since 2010, we have only had ONE BT Copyright Troll “Show Trial???” Yes, a majority of Federal civil law suits are settled out of trial, but with the sheer number of cases since 2010, we should have had more than ONE joke trial. This tells you how fearful the Trolls are and what is the best course of action.

DieTrollDie 🙂

“All right, sweethearts, what are you waiting for? Breakfast in bed? Another glorious day in the Corps! A day in the Marine Corps is like a day on the farm. Every meal’s a banquet! Every paycheck a fortune! Every formation a parade! I LOVE the Corps!.” {Aliens, SGT Apone}

My45ACP

 

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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26 Responses to “Copyright Troll Poker” – OR How To Survive This Troll “No-Limit” Game

  1. Christenson says:

    Dear Troll Ninja:
    It seems the typo monster is afoot. Bellwether is the correct spelling of the word, a wether being the lead ram in a flock of sheep. Bell Weather is an American corruption.

    Now, when does Paul Nicoletti go to jail? Keith Lipscomb? Patrick Acache?(probably the fount of all of this)
    Keep up the good work!

  2. DieTrollDie says:

    ehud gavron suggested that when dealing with the Trolls in negotiations, you should reference Rule 408 when doing so to preserve your rights – see changes above. I also added a disclaimer – I’m not an attorney and I’m not practicing law. These are my opinion/views/thoughts. Take them or leave them.

    DTD 🙂

  3. Sam says:

    Hi,

    I’m wondering about action involving AMA Multimedia/PornPros. I see they have recently gone after PornTube and other such hosting sites.

    They are also involved with CEG-TEK. Having received one of their notices from my VPN, do you think they’ll eventually go after torrent downloaders?

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  21. j says:

    dietrolldie do you have any information on ME2 case from utah ? i received a subpoena from my isp

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