Answering A BT Copyright Troll Summons/Complaint

CaveatI’m not an attorney and I’m not practicing law. This is simply my thoughts and views based on what I see concerning BitTorrent (BT) Copyright Infringement Trolls. If you decide you need legal advice, please hire a knowledgeable attorney. IF you truly cannot afford an attorney, here at least is one possible option.

*** In case you missed it, here is an article worth reading from Attorney Robert Cashman, “DieTrollDie Re-Blog: How copyright trolls are forcing defendants deeper into the federal cases, and how to respond.” ***  It is very possible that the Troll attorneys are dragging these cases out now to increase billing of the Plaintiff.

Pre-Article Note: On 17 Oct 16, Judge John Durragh issued a Final Judgement and Order on the infamous “Prenda v. The Internet,” case (1:13-cv-01569).   judgement_order_prenda_01569il   The judge awarded the Defendants $162, 448.74 in attorney fees/costs, $11,758.20 in sanctions, AND $500,000 in punitive damages! Thank you everyone who took part in this. Suck It Steele!

board_answer1

For a while now I have been seeing some of the Trolls actually amending their Multi-Doe complaints – to name the non-settling ISP subscribers as Defendants. This was also noted by attorney John Whitaker in his article “Dallas Buyers Club & Cobbler Nevada: Sample Pro Se Answer” (14 Mar 16).

While the Trolls and their supporters may claim this clearly shows they are not afraid to prosecute these cases, I find it highly suspect. From all of the cases I have seen, this is simply a tactic born out of necessity. Prior to using this tactic, the Troll settlements were for the most part entirely dependent on how much Fear, Uncertainty, and Doubt (FUD) they could induce on a Doe. If a Doe decided to ignore the settlement demand, the Troll was out of luck (and a settlement). This is why I originally wrote the Richard Pryor Response (RPR) article in 2012. Ignoring the Troll for the most part was the right thing to do. This even led to infamous Troll, John Steele (Steele/Hansmeier & Prenda Law) to gloat that it pushed them to start naming Defendants and increased settlements. Too bad John Steele couldn’t see that it would also lead to the legal fights that would help bring them down.

Now I believe the Trolls who work with Voltage Pictures have also decided to use this tactic to increases their settlement rates. The advantage in using this tactic (Naming & Serving OR Naming & Waving Service) is it increased a Defendants FUD and requires them to take some sort of action. Hopefully (for the Troll) it brings the Doe to the settlement negotiation table. After all, settlement generation is the goal of this business model – PERIOD. Even if a named Defendant does not respond to the summons/complaint, The Troll can easily motion the court for a default judgement. The default judgements are unlikely to get them any real money, but it does allow them to claim they are serious and move onto new cases.

The Trolls are of the opinion that people will be too scared to file an answer OR once they hire an attorney, some sort of settlement will be eventually worked out. I have no doubts there have been innocent Does/ISP subscriber who have paid a settlement for no other reason than to avoid a costly defense bill. Many Defense attorneys do offer reasonable flat rates for people who only wish to settle. What you will not see is a reasonable “flat rate” cost for defending a Doe – it just isn’t a reality and I understand why. For those Does who wish to fight, their Defense attorneys will inform them that the cost to fight may be more than if they simply paid the settlement. Even if you are successful in getting the Troll to turn tail and run, there is also NO guarantee the court will have the Troll cover their legal bills. The Trolls know this and are using it to their advantage.

So What Can An Innocent Doe/ISP Subscriber Do If They Don’t Have The Finances Available To Hire An Attorney?

– They Can File An Answer On Their Own

Here is small part from attorney Whitaker’s article on the basics of an answer. – “Answer the Complaint. What that means is for every numbered paragraph in the Complaint, you have to either admit it is true, deny it is true, or say that you don’t have sufficient information to either admit or deny.  Resist the urge to tell your story in the Answer.  Just don’t do it.  Admit. Deny. Insufficient information.  Nothing else.”

I will also add that lying on such a document is dangerous and can get you in trouble – don’t do it.

So in saying that, here is a basic answer template and the amended complaint it is based on.   def-answer_template   amend_complaint_01073az

answert_ss1

My answer has a little bit more than Whitakers’, but you can edit it to suit your particular situation.  The first part of the answer simply states the overall denial of Plaintiff’s claims and informs the court that Troll/Plaintiff has named the ISP subscriber as the Defendant for no other reason that he/she pays the bill for the service. The next section addresses each numbered section in the amended complaint and is either an admission, a denial, or lacks information to respond. The last section asks the court to dismiss the case and grant the Defendant other relief (Injunction, show cause order, & contempt finding).

So IF You Are Inclined, Here Is What You Will Need To Do

  • Obtain a copy of the amended complaint in which you are named. Edit the answer template – change the District, Plaintiff, Defendant, and Case number, first paragraph, etc. Do NOT simply slap you name on this and submit it to the court – at best you will look the fool. You need to make it your personal document and understand what it all means.
  • Next go through the complaint and read each numbered section. Answer each section with an admission, denial, or that you lack information to respond. You can add some additional bits to some of the sections, but it is not required.
  • The last section is where you ask the court to take action. This can be requesting a dismissal, a jury trial, sanctions, etc. If you are not comfortable with asking for anything, then simply edit it to say something like, “Defendant having fully answered and pled to the causes of actions herein, Defendant requests this case be dismissed with prejudice.”  Note: information on FRCP 11 can be found at the following Cornell Law Web page – Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

Print, Sign, Date, Mail, etc.

Once you think you have your Answer ready, take a long reread of it. Make sure you are comfortable with it and it reads well. Also make sure your contact information is correct. Print out a copy and then sign both sections (the answer & the certificate of service). Make at least two copies of the signed/dated answer & service.  Mail the original answer to the district court – see the court’s Web site for the address. I would also add the name of the judge and case number to the address – Attn. Judge Smith, 2:16-cv-00123.  You can also submit the answer in person if you are near the court – contact the court for specifics. Mail one of the copies to the Troll office via certified mail (return receipt requested). You can find the Troll address on the docket. Keep the last copy for your records.

Once the court receives the answer, they will add it to the case docket and it will be available via PACER. This matter has now been pushed back to the Troll and his ability to motion for a default judgement has been stopped. The Troll will likely then attempt to contact you and “settle” the matter. He may offer a reduced amount or even claim they will move forward with depositions and a computer forensic analysis that will end in their favor.

Advantage Defendant

At this point, the main advantage for the Defendant is the Troll will have to take otherwise costly steps to get a Defendant to settle. Advancing the case to Discovery is the next main step. Doing so will require the Troll to spend more time, effort, and money. These cases were not designed to stay profitable with the added expense of a full discovery. The Defendant on the other hand only has to expend time and some effort. The Troll also realizes that there will come a point where Troll/Plaintiff’s costs in trying to force a settlement will exceed the ability and financial situation of the Defendant to pay. By holding out, a defendant can hopefully get the Troll to agree to dismiss the cases outright and not pay anything.

If the Troll wishes to move forward, a deposition of the Defendant is the most likely next step. If the deposition only discloses the Defendant denies the infringement, denies any BT usage, and/or doesn’t knows how it happens, the best the Troll can do is suggest that it MUST have been an authorized network user because WiFi hacking is unlikely.  A Defendant claim of an “Open” WiFi is unlikely to be believed, but proving otherwise will be hard for the Troll. A forensic examination of the computers is a possibility, but an expensive one. Plus if no evidence is found, expect the Troll to claim you hid the computer or destroyed evidence. Such a scenario has been seen in previous Malibu Media LLC cases. This then leads to a motion for summary judgement, with the Troll claiming all the facts show the Defendant to be the offender and destroyer of evidence. Unless there is clear factual based evidence to support such a claim, the court is unlikely to rule in their favor.  The only good thing for the Troll at this point is even if a court dismissed the case with prejudice, a Pro Se Defendant is not going to have any attorney fees that they can be made to pay for. The best a Pro Se Defendant can do is claim whatever misc. costs he incurred in defending himself.

So is filing an answer right for every Defendant?  No.  Each case, court, and Troll/Plaintiff is different. Do what is best for you and remember that these cases are designed to run as cheap as possible (for the Troll) and anything that adds more time and costs reduces their profit margin.

– Suggested reading – Troll Poker & Talking To The Trolls

DieTrollDie 🙂   “Sometimes the only thing more dangerous than a question is an answer.”  {Ferengi Rules of Acquisition # 208}

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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13 Responses to Answering A BT Copyright Troll Summons/Complaint

  1. It is a sad day when trolls force those they’ve accused to become legal experts and to stick their toes into the federal courts to defend themselves. DTD is correct that lawyers (myself included) can get expensive, and defending a case (e.g., answering a complaint, showing up and defending a deposition, answering the various requests for information that is required of us, etc.) is often more expensive than simply paying them a few bucks to make them go away.

    Unfortunately (at least in my district), the trolls appear to be paid BY THE HOUR by their clients (rather than taking a case on contingency and only sharing the settlement profits), so they seem to be running-up the bill by dragging the defendants through the mud — naming them, serving them, filing documents, and wasting everyone’s time.

    In short, while I agree that IN NORMAL CIRCUMSTANCES doing what DTD suggested (filing an answer with the court and fighting your case) would normally not be something one would ever dare do [at least without a lawyer holding his/her hand], in today’s evolution of the bittorrent cases, filing an answer and at least being willing to endure the legal process until a settlement is offered (and it is usually offered eventually) has become a necessity.

    PS – I said before lawyers are expensive simply because we charge for the time it takes to complete each step of the process. However, many attorneys (myself included) already know how much time each step will take, so “flat fee” billing is an option (understanding that billing would happen based on timelines of where you are in the lawsuit). —– this is too much for a comment, so I’ll end here.

    Good article, DTD!

    • DieTrollDie says:

      Thank you Mr. Cashman. You input is always of value.

      DTD 🙂

    • InquiringMinds says:

      “In short, while I agree that IN NORMAL CIRCUMSTANCES doing what DTD suggested (filing an answer with the court and fighting your case) would normally not be something one would ever dare do [at least without a lawyer holding his/her hand], in today’s evolution of the bittorrent cases, filing an answer and at least being willing to endure the legal process until a settlement is offered (and it is usually offered eventually) has become a necessity.”

      Are you saying that in normal circumstances you would NOT file an answer to the court?

      • DieTrollDie says:

        I think what he is saying that in normal circumstances, you would not file an answer Pro Se (by yourself). IMO, filing an answer can work out well for a Defendant. Pro Se has the advantage of not costing you the attorney fees. BUT…, that cost you pay a knowledgeable attorney can be worth its weight in gold to you – reduced stress and a Troll NOT wanting to push it too hard. Now if you can stomach this, filing a Pro Se answer has the advantage of keeping the Troll busy (spending time & money on the case). The Troll will realize they are losing money over time and will eventually try to work out a reduced settlement or a walk-away deal. If I had the money I would hire a good attorney. If not, I would file Pro Se after carefully studying the specific Troll and their past behavior/Tactics.
        DTD 🙂

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