The Dangers of Talking To The BT Copyright Troll – They Are NOT Your Friends

*** Attention – If you are a John Doe (or named Defendant) in any past/present BT Copyright Troll case in the Chicago area, please send me an email. I have a reporter who is looking to talk with some John Does. Thank you. DTD 🙂    dietrolldie@dietrolldie.com ***

Well the summer is heating up and I hope everyone is able to find some relief and enjoy themselves.  I recently got back from Las Vegas, NV, after experiencing 109’F.  ;(  Still it was a fun trip and good times were had.

Vegas_2016What is NOT a good time is dealing with BitTorrent (BT) Copyright Trolls.  I recently came across a list of questions one BT Copyright Troll was asking a John Doe/ISP subscriber who claimed innocence.  Now once again I will state clearly that none of what I’m talking about here is me trying to practice law.  This is just my thoughts and opinions on the various BT Copyright Troll antics.

Should You Talk To The Trolls?

Now in general, I’m usually very hesitant to suggest to people that they may want to contact the Trolls themselves and state their innocence. As I stated in my previous article, even if you are innocent, you could say something that gets misconstrued or you just sound so nervous the Troll figures some more pressure and you will pay up even if innocent.  YES, people do this.  These BT Copyright Trolling efforts are simply greed rationalized by the fact that peer-to-peer file sharing occurs.

Each BT Copyright Troll/Plaintiff is different and so is how each one runs their cases.   For many of the mass-Doe copyright infringement cases, I don’t suggest getting an attorney unless named/served or receive a deposition subpoena.  For many of the single-Doe cases, I do recommend at least talking with an attorney. With many of the single-Doe cases, the Troll for some reason appears to be more confidant and will go to the naming/serving stage with little hesitation. There is no hard and fast rules either; as well as things can change very fast. I have recently seen some mass Doe cases where the Troll got as many settlements as possible and finally named/served the remaining handful of Defendants.

In general I believe it is preferable to have an attorney speak for you, but if some reason it is not possible (no money, etc.), you can do it yourself.  Just be very careful.

So here are the basic questions a Troll attorney is going to be asking anyone who claims innocence. The questions will generally come in a written form (preferable to the Troll), but verbal is better than nothing. NOTE: One thing I didn’t see printed on the question form was that this was part a settlement negotiation. Why is this important???

This is important because without this, the questioning is simply part of the Troll investigation. As it is NOT part of a settlement negotiation, the protections of Federal Rules of Evidence (FRE), Rule 408 are not generally going to be applied. The Troll will simply state that you voluntarily agreed to assist them in their investigation.  So what is wrong with that???

  • Again, based on the past activity of BT Copyright Trolls, they are NOT your friends and they are NOT here to help you – even if innocent. ANY response to Troll questions needs to have (My Opinion) “(FRE 408) – Confidential/For Settlement Purposes Only” placed at the beginning and end of each page or other correspondence.

Now someone might say, “Well, the questioning isn’t part of a settlement, so FRE 408 doesn’t apply.WRONG! – A settlement doesn’t have to mean YOU (John Doe/ISP subscriber) are going to pay Troll/Plaintiff anything. It simply means you are coming to an agreement on how to settle the issue at hand (Copyright Infringement). If Troll/Plaintiff decides to drop the case against the John Doe/ISP subscriber based on the information provided, then a settlement has been reached. Making sure FRE 408 is plastered on all such correspondence is important; it generally makes is so Troll/Plaintiff cannot use the content of the settlement negotiation to prove their case. Now FRE 408 is not a perfect protection, but it makes it significantly harder for the Troll to use such information to prove their case. AND make no mistake, if YOU are a John Doe (IP address is listed in the complaint), this is an adversarial process and you want all the protections you can get.

So Here Are The Questions

Question No. 1. Identify all computers (including equipment which performs computational functions) and electronic storage devices used at your address, that may have had access to an IP address assigned to your address at any time in the 2016 calendar year, including providing dates of use, date of purchase, current location, any brand and model number or other identifying designation, and the storage capacity of each such device listing number of drives, model and size where available. If any such computer or storage device is no longer at the location, in your possession, or subject to your control, describe how, when and why you no longer have possession or control of the device.

Why This Question?

  • The only thing the Troll knows (at this time) is on specific dates/times, their BT monitoring service recorded a public IP address assigned to you (the ISP subscriber), the BT client used to share Plaintiff’s content (likely recorded at multiple times), and the “other” (non-Plaintiff) files that were also available to be shared via the BT client using your public IP address.
  • The Troll needs you to tell them what computers are/were on the internal network – behind your WiFi Firewall/Router. Otherwise they don’t have a clue. Now based on the specific BT client they recorded, they can make assumptions on what OS the BT client was running on.
  • They will also use this information to narrow down who is the most likely BT user, based on periods of use, specific user, and the types of “other (non-Plaintiff) files available via the BT client.

Question No. 2. Please identify all persons who are known to have used or operated any of the items identified in response to Question #1, including the computer or device used, nature of each person’s use, best known dates of use, each person’s relationship to you, and the current best known contact information including address, telephone number and email and representation by counsel if any.

Why This Question?

  • Same as above; the Troll only knows the name of ISP subscriber because of the ISP subpoena. Now once they have your name and address, they can do some Internet and Lexus/Nexus searches to see who is likely at the residence. Spouse, children, adult children, roommates, etc.
  • Again, the information provided will be used to select who the most likely BT user is. NOTE: I said “most likely” and not the person responsible. Bottom line is the Troll doesn’t care who did this, just that someone is going to pay a settlement to make the law suit go away (my opinion). The answers to these questions are NOT being used to rule out people; they are used to identify a specific target(s) for the Troll attorney.

Question No. 3. Please identify all clients or software used for peer-to-peer file transfers on any of the items identified in response to Question #1, including the name of the software, version, date of installation, the person who performed installation, any person who used the software, and date of removal or deletion if removed or deleted, and the person who removed or deleted the software.

Why This Question?

  • If they can get you to provide what BT client was used and it matches what their BT monitors recorded, they have more evidence. But even if the BT client doesn’t match, they will simply say that you are/were a BT user and likely a serial infringer of protected content. They will say you simply switched BT clients since they recorded the activity.
  • This information will also tie back to a specific computer and the person(s) who normally uses it – narrowing the target.

Question No. 4. Please state whether any file deleting programs or hard drive cleaning software has been used on any of the computers identified in Question #1 in the 2016 calendar year, including computer or device on which such software was used, the date of first installation of any such software, the dates of use, and the purpose of such use.

Why This Question?

  • The Troll is looking for anything to support their claims if/when a forensic analysis comes back with NO Plaintiff’s movie/content, NO torrent files, NO BT client, NO “other” (Non-Plaintiff) files shared by BT client, etc. Simply claiming a person deleted/wiped the files is standard Troll tactic when evidence is lacking. Another claim is that a person removed/hid/destroyed/donated the offending computer (where the BT client was run) from the residence. This was BT Copyright Troll attorney Keith Lipscomb’s (Malibu Media, X-Art) worry – as he stated in the closing arguments in the PA Bell Weather trial.
  • For most of the current Non-Malibu Media cases, the chance of a forensic examination is going to be unlikely at best. The simple imaging and analysis of one hard drive is likely to cost the Troll a $1,000+. Note: As of writing this article Sophisticated Jane Doe reports that it has been two months since the last Malibu Media cases was filed. As I previous said, things can change fast with the BT Copyright Trolls. Still we have other Troll/Plaintiff who are willing to file these cases.

Question No. 5. Describe your Internet service as made available for use at your address anytime in the 2016 calendar year, including make and model of any modems, network routers, WiFi routers, network access points, passwords used, and any changes made in the 2016 calendar year, and dates of such changes including changes to passwords.

Why This Question?

  • The Troll does not know how your network was set-up/run. Here is where they hope to lock you into saying that the network was password protected, you never gave out the password to others, and never saw any instances of unknown/unauthorized computers using your network. If you tell them that password changes were made at specific dates and the BT activity continued, they will assume it is from an authorized network user.

Question No. 6. Attached is a list of confirmed acts of distributions of copyrighted content in violation of U.S. Copyright Law observed as originating from the IP address assigned to you. Provide a list of all parties who had access to the Internet service at your address at any of the times and dates noted in the exhibit, including parties who may have left a computer running whether or not they were then present at the address.

Why This Question?

  • More narrowing of targets by the Trolls. Who had access to the network during the dates in question? Did someone leave a computer running a BT client for any time period(s)?

Question No. 7. Also attached is a list of BitTorrent activity observed associated with your assigned IP address. Please identify by item number any titles or files that you observed (through any means), shared, downloaded or attempted to download through the BitTorrent protocol at any time by file number. For each such identified title or file, state:

  • the BitTorrent client or software used;
  • the torrent web site, portal, or index used to find the torrent associated with each file;
  • the item from Question #1 that was used to operate the client or software;
  • the item from Question #1 where any such content was stored;
  • whether the content has been deleted;
  • the date of such deletion and the manner or software used for such deletion.

Why This Question?

  • The Troll is trying to narrow down who may have used the BT client to share Plaintiff’s movie/content. Even if you are the ISP subscriber and did NOT do this, saying that you knew of the copyright infringement activity via BT could give way to a claim of contributory copyright infringement against you. Essentially a Troll could claim that by YOU knowing of the BT copyright Infringement by another person and then allowing that person to use your network to do so, you have contributed to copyright infringement.   

Question No. 8. Identity any file you have downloaded in the last three years in whole or part using a peer-to-peer or BitTorrent protocol which is not identified in response to Question #7. For each such file, state:

  • The name of the file downloaded and common name of the content of the file (title of book, movie, etc.;
  • the BitTorrent client or software used;
  • the torrent web site, portal, or index used to find the torrent associated with each file;
  • the item from Question #1 that was used to operate the client or software;
  • the item from Question #1 where any such content was stored;
  • whether the content has been deleted; and
  • the date of such deletion and the manner or software used for such deletion.

Why This Question?

  • Again, on the chance that there is no evidence disclosed, the Troll attorney will be looking to point to something that they believe indicates you are responsible – going back three years! As BT is a large part of on-line copyright infringement, the Troll will claim you must be responsible – “Nobody use BT for purely legal reasons.”

Question No. 9. Describe all known BT related activity conducted by others through an IP address assigned to your residence in the last three years, including who conducted such activity, dates of such conduct, dates of notification of such conduct, and items identified in response to Question #1 that were used for such conduct and the basis for your knowledge.

Why This Question?

  • As previous said, if you tell the Troll that you knew of BT activity ongoing on your network, there could come a claim of contributory infringement, because you did not attempt to stop the illegal activity and let it persist.
  • Otherwise they are simply looking for evidence from you to point out who the infringer is/was. This of course comes out as a veiled threat IMO – do our investigative work OR you may be named/served with a complaint summons.

Question No. 10. Identify each website, blog or message board you have visited, or to which you have subscribed, posted or hosted, which refers to, relates to, or discusses, Internet piracy, BitTorrent, file sharing, or which provides information to people regarding suits which allege that people have committed on-line copyright infringement. For each site, identify any email used associated with the site, handle, user name, or any postings or communications made to or through such site in which you were a party to such communication.

Why This Question?

  • OK, you got to love this question! They are looking for you to implicate yourself by what you may have posted on-line. They need you to tell them what site/blogs you posted to, names used, email address used. They will then search the sites to see what was said and if it implicates you or others.
  • FUNNY, but if you read and/listen to the PA Bell Weather trial; you will see that Keith Lipscomb had very similar questions posed to the Defendants during depositions. 

Question No. 11. Identify any communication or documents received from your ISP or related to your Internet usage in the last three years including any changes regarding the terms of your contract or agreement, and any notices you have received, including but not limited to notices of copyright infringement or DMCA related notices.

Why This Question?

  • They are looking for information that shows that you (the ISP subscriber) knew that your network connection was using an excessive amount of data each month (caused by BT activity) and didn’t care – because YOU were responsible for the BT activity (or at least knew of the BT activity and did nothing).
  • Also if you received any DMCA take-down notices and what you did to stop the BT activity on the network. If you did nothing, then they will claim that is because YOU were responsible for it (or at least allowed it to occur).

Question No. 12. Please provide your travel history for any dates in 2016 in which you were not at your residence.

Why This Question?

  • The Troll wants to know your travel history in case you later claim to be out-of-town during the alleged infringement periods.

Your Decision

Now if you choose to speak with the Troll, please make sure you caveat your answers appropriately if needed.  If you are asked a question and are not sure of the answer, tell them that. Tell them you are unsure and will need to get back to them after you have had an opportunity to research the matter.  Some of the questions go back three years!  I don’t know about you, but going back three years on these otherwise normally mundane matters is going to be near impossible.  Don’t be afraid to state that you don’t know the answer to their questions.

Hopefully most of you will never be faced with this situation, but it is better to be prepared if it happens.

DieTrollDie 🙂

“Move according to your opponent.” {One lesson from Master Funakoshi}

miyamoto1

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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17 Responses to The Dangers of Talking To The BT Copyright Troll – They Are NOT Your Friends

  1. Hickster says:

    An excellent post. I realise that the US and the UK are different legal systems, HOWEVER this advice is just the same for either. These people work on template responses, that is why they get so pissed when the recipient does the same to them.

    Think of the most dumbest person on the minimal wage, that stares at an orange juice carton, because it says “Concentrate”, this is the type of person who probably does the first filter of the letters received, they have no knowledge, so they just receive the letter then have a stack of response letters, so send one. Most of the time, I doubt they even read the letters that are sent to them, if it doesn’t have the financials filled out, (credit card details and a commitment to cave into their blackmail), they will just send letter B, then Letter C.

    They have no real evidence, beyond the Title of the work, and the time and date of the alleged infringement, and the hash of the file. They NEED you to incriminate yourself. A decent person who is not aware of their skulduggery, and shadiness of their business, might think, “Oh, well I know I didn’t do it, but I do have other people in the house, that MAY have done something wrong” STOP, it is NOT your job to supply them with rope. Their evidence is so sketchy, they would hang you for ANYTHING as long as they got a pay day.

    Reply, Deny, Repeat

  2. Anon says:

    Please also emphasize the extreme need, if having any verbal conversation regarding these or similar questions with a troll, to start each reply with “Under Federal Rules of Evidence 408, the following reply is confidential and its sole exclusive use is for settlement purposes only……” .

    This will also make sure you are covered to the extent possible when making any verbal statement or answering any verbal question. This is the same as the great advice above on printing the FRE408 statement on the top and bottom of any written responses to trolls.

    Do not make anything easy for these extortionists.
    Copyright? Yeah! Right! It’s criminal extortion…..nothing less. Immoral, unethical, extortion.

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