Archive for September, 2011

Short break

Posted: September 25, 2011 by SJD in Housekeeping
Tags:

Sorry for not keeping up. I’m traveling now and will be back early next week. I read everything (Twitter, emails, blogs etc.) but I’m not used to typing long texts on a phone.

Hiking in the forest, looking at the centuries-old trees, mountains and waterfalls, I managed not to think about bad people for the most part of my journey, and I can’t explain how relieved, lighthearted and happy I am.

Yet during those short moments I remembered the legal criminals, copyright trolls, I acutely realized the extent of the harm they managed to inflict on this world. How many moments of peace did they trump during their assault on the younger generation? How many folks felt scared, desperate and depressed because of trolls’ unstoppable greed? This harm may very well be beyond repair for some, and I will not forget it.

I used to compare trolls to insects and worms, but seeing those tiny organisms living their lives, having their important little places in the universe, I’m embarrassed for being so mean to those insects and worms; it is unfair to compare these living, loving creatures to unnatural, greedy and sleazy ones – Sperlein, Steele, Siegel, Dunlap, Stone, Ford and scores of other trolls.


Kenneth Ford

ArsTechnica has recently published Nate’s Anderson’s article about Kenneth Ford, one of the most “famous” West Virginia copyright trolls: “How a troubled West Virginia lawyer foisted a Teen Anal Nightmare on the nation.” In my (and most readers’) opinion, this kind of high-quality investigative journalism is the hallmark of Ars’ publications.

I personally think that this article is a must-read for anyone who follows current mass filesharing lawsuits that abuse the law and insult common sense, and for those who care about justice in general.

The article brought a crooked character of Ken Ford to the light. His license was suspended six times since 2006, and numerous complaints were filed against him. Though this particular information was new to me, I was not surprised. Quick cash schemes that disregard ethics have always been attracting all kinds of con artists: IO Group’s lawyers are currently being investigated for security fraud, a Texas attorney has been recently sanctioned for deliberately sending subpoenas to ISPs without court’s approval. Even those who are formally “clean,” have been constantly lying to courts: they often request postponements to serve defendants, complaining about ISPs’ non-cooperativeness, but in reality wanting to buy more time in order to extort as much money as possible. In addition they invent non-existing requirements in ISPs’ Terms of Service, conceal important information, and mislead judges… The list can go on and on.

One of the most hypocritical excuses trolls use is that they “just do whatever is good for their clients,” claiming that they merely do their jobs and earn their bread. Bullshit: I know many lawyers and most of them would never resort to unethical schemes like speculative invoicing, no matter how lucrative these schemes are. There is no need to trump on dignity to earn a living.

I’d like to quote one of the best comments to this article in full.

Mogbert wrote:

This is the kind of thing that scares me. The only way to prove your innocence is by proving a negative. For you to claim you didn’t do it, they want to examine every IP enabled device you’ve owned. If you can’t provide one, then it is proof you are guilty. If you had to restore any of your systems, then you are guilty. If any HDD you’ve owned goes bad anytime between when they claim they saw your IP address and when you go to court, you are guilty.

For a one or two computer house, maybe that wouldn’t be a problem. What if you are a tech head. What if you have thirteen computers, only five of which are actively up and being used? You have over twenty-five HDD not in any given computer, ten of which are external, and three you can’t remember where you’ve put them. You know you have about seven flash drives, but you only know where two of them are, the others are lost, under the bed, or somewhere in the yard after a trip through your pet’s digestive system.

So let me get this straight. You tell me that your infallible system saw an IP address that someone else has said was assigned to my device which was made entirely for the purpose of sharing that IP address with multiple devices, and which uses standard security that I hope hasn’t already been cracked. Then you tell me that either I pay you several thousand dollars or pay a lawyer who will try and prove this negative (civil case, doesn’t need to be shadow of a doubt) at a risk of over a hundred thousand dollars, plus legal fees. But IF I win, there MIGHT be a chance that the judge will ask you to pay my legal fees, and if he does I MIGHT eventually get them from you, if you answer your phone, or I may need to get the lawyer to force it from you again. And at the end of this, I’ve only won the right to not be accused of that one infringement. You can always try again with another movie?

How much longer are we going to allow this to happen? Either some major reform goes on to protect people from this scam, or someone will step up and balance the reward side of this equation with some risk. Either they are going to threaten the wrong guy (which will likely end with an assault/murder charge), or some hacker group out there (MAFIAA, I’m looking at you) will find a way to spoof IP addresses of every major politician, mover and shaker, to every porn torrent in order to show that, NO, an IP address does not constitute automatic guilt.

Too often, these people go up to court and present their IP address as if it is the DNA evidence that seals the case. “You can’t PROVE that you aren’t guilty, but we have proof! WE have an IP address that leads directly to you!” Yeah, however there is no checking. You got that IP address from a company that gets paid to provide you IP addresses. How do we know they weren’t just made up? Some IP addresses went to people that had already died. One went to a printer. If the company fed you a bad IP address, would the system kick it out, or just identify another person down the street? Does that IP address indicate a person, a house, or a 100 yard radius around a WEP protected router? Do I need to prove that someone was parked down the street from my house on the day in question, with a beer can antenna, gabbing some pr0n on his lunch break? How exactly can someone prove they are innocent? Is it like TV where the only way to prove I’m innocent is to find the real culprit and trick him into confessing while an extraordinarily patient police officer waits behind a curtain?

When asked that question in court, the best they could come up with was “There isn’t any way to prove the person is really guilty, the evidence doesn’t exist. However, we have found all the evidence that is possible to get, and so it has to be enough even if it doesn’t prove anything.” This logic is flawed, but was allowed to fly in court. Cases where enough evidence to find someone guilty doesn’t exist should be thrown out, not seen as an proof the person is guilty. That is like saying “Your honor, the accused is a cunningly clever criminal. All of the evidence points away from him. JUST like you would expect from someone so cunningly clever. Therefore, it PROVES that he MUST be guilty! If he wasn’t, then WHY would the evidence point away from him!”

OK sorry for wall of text. I just needed to let that out. I’m done.

“There is no need to apologize,” – many repliers to this comment agreed. I have the same opinion: there is no need to apologize for the same kind of emotions that overwhelm everyone who has taken an effort to learn about this cynical abuse of judicial system. Only uninformed folks or inch-thick skinned cynics would remain indifferent. More and more people become informed and hence outraged.

If you read TorrentFreak regularly, you probably did not miss a recent discussion about accountability of open WiFi owners whose internet accounts were used for file sharing by someone else :

 
The last article is rather long and complex, but if you made an effort to read it, I bet you enjoyed the precise and powerful way Randazza’s “theory” of negligence was crushed to dust. As a commenter noticed,

You have not simply debunked Randazza’s theory of negligence: you have debunked Randazza himself. All of us with an interest in this matter — and his current and potential victims especially — must surely owe you a great debt of gratitude.

Thank you, Mr Ranallo.
We’re all very much obliged to you.

I was glad to learn that Nicholas Randallo not only writes excellent articles, but also offers inexpensive legal help to copyright troll’s victims, eliminating one of the major trolls’ weapons of fear: their claim that fighting in court is more expensive than to settling.

Nicholas Ranallo introduces himself.

It’s all started with a comment on one of this blog’s articles (the original spelling has been preserved):

It really really stinks but people are getting sued all over the country in federal AND state courts. The federal ones are the only ones that you can search, but I got sued in state court and ended up settling for $7500 with US Copyright Group. I could have gotten out for $3500 with the letter I got but I went ahead and agred to the $7500 settlement since my attorney wanted $10,000 on retainer just to file an answer. Take my advice: settle early, and try to do it yourself. Call the law firm and tell them you have an unsecured router, and offer them $1000 less than what they ask for and see if they will take it. You might be pleasantly surprised, and if they won’t agree, you arent out ANY MONEY. The copyright defense lawyers are just as bad as the ones doing the suing. This site definitely has it right: www.legalcopyrightreform.com I wish i’d seen it 6 months ago before i rolled the dice and blew the whole thing off. I keep reading “don’t feed the trolls, don’t settle”, but the people shooting that off arent going to be there to pay my attorney when I get sued. it is easy to just say “don’t pay” but they don’t have to deal with the conseuqences. I am all for this coalition group’s stance–they need to revise the whole copyright act!!!

Because my bullshit detector is very sensitive, it overheated immediately. And when I followed the link in this comment I found a cynical and predatory assault on common sense.

Half-truths have been always worse than pure lies. An unsuspecting visitor may be deceived by the lashing of trolls in the first paragraphs: it plays nicely along the feelings of copyright trolls’ victims. But little by little one can discover really strange ideas.

The worst and most dangerous part of this site is its main message: settle early. Anyone in his/her clear mind wouldn’t come up with such an insane conclusion after just an hour of research.

Some lies on this site do not even pass a laugh test:

If you get named and personally sued . . . well you didn’t take this advice. Call a lawyer and deal with it. There are at least 100 cases where downloaders got sued individually and didn’t respond to the lawsuit and had $30,000 judgments AND attorneys fees charged to them. Now those trolls are taking houses, cars, bank accounts etc. . . .

or

We are a group of retired and practicing lawyers, law school professors, legal analysts, and concerned citizens who all share a common bond and goal: To promote and help facilitate the widespread and much-needed reform of the U.S. Copyright Act.

Really? Lawyers lashing lawyers for being paid for their job? Lawyers giving an advice to deal with trolls without retaining an attorney? Law school professors who can’t spell and have a terrible writing style? Unbelievable impudence.

The site cynically links to the Public Knowledge donation page to create an impression of legitimacy. I asked the guys from PK about www.legalcopyrightreform.com and as expected, they never heard about it.

As I suspected, this “group” is actually a single guy named Malloch O’Brennan (the name may be fake), who has resorted to Google sites with the worst possible theme in stock.

Here is the legalcopyrightreform.com WHOIS info

   domain: legalcopyrightreform.com
   created: 22-Aug-2011
   last-changed: 22-Aug-2011
   registration-expiration: 22-Aug-2012
  
   registrant-firstname: Malloch
   registrant-lastname: Obrennan
   registrant-street1: 1200 24th St NW
   registrant-pcode: 20037
   registrant-state: DC
   registrant-city: Washington
   registrant-ccode: US
   registrant-phone: +1.2025299934
   registrant-email: mallochb@gmail.com

By the way the address in the registry is the address of an underground parking garage under the Fairmont hotel.

This guy is spreading his lies all over the blogosphere: I saw posts similar to the one I mentioned above on TechDirt, ArsTechnica and TorrentFreak discussion boards. Different names — same sick agenda. This comment is from the ArsTechnica discussion board:

truedaddy wrote:

Wow these English blokes sure started a trend here in the States. Unfortunately for us, the attorneys doing this crap here are actually suing people, and there is a whole network of plaintiffs attorneys representing the studios and targeting individual downloaders in their home states. On June 9th, a Massachusetts judge awarded a judgment in that Far Cry case of $30,000 plus attorneys fees for downloading the movie. On July 5th another $30,000 award against a downloader of the Steam Experiment movie in Virginia (Eastern District), which is the max under the Copyright Act. I read there have been several hundred filed across the country and not just in Federal Court.

With these results, the troll attorneys are going to be all over these cases to go after all the people who didn’t settle. It is just pathetic that these thousands of people who refuse to settle in the “pay up or else” scheme are actually going to spend the rest of their lives paying off these judgments or have to declare bankruptcy.

Update: I was happy to find out that TorrentFreak community flagged a similar fear-mongering comment from this guy (this time as “JohnDoe2033″) recently, so I can’t quote it.

So now when you have had a chance to browse his site, what do you think?

Update

9/26/11: legalcopyrightreform.com now points nowhere. The Google site is still there though: https://sites.google.com/site/legalcopyrightreform/

9/28/11: There is another site, slightly different: https://sites.google.com/site/lglcr1 There is a suspicion that Kenneth Ford is behind this scam. Good news: google search on “legalcopyrightreform.com” or “Legal Coalition for Copyright Reform” yields this article as #1 result :)

This post was written by TAC. You probably know him and his well-articulated, colorful and precise comments if you read tech blogs such as TechDirt or TorrentFreak. Enjoy.

Hello campers, you can call me TAC. My troll friends know me by a couple names and this post should confirm for them that I am behind both names. This post is a little out of date, but it covers the basics that someone getting a letter from one of these firms should understand before making any decision. I am not a lawyer, and I do not play one on TV. This is not legal advice for that you need to hire your own lawyer. (Never trust a troll, they lie.) Most of my experience with the trolls is from the world of *gasp* gay porn. Few of these cases get bright lights shined upon them, so I’ve been working extra hard to keep people educated.

Welcome to the fear. Please stop and take a deep breath. Now take another. I’m TAC and I am your tour guide through hell… There is a lot of information, so please stay with the tour and hold your question till the end… Come with me, and we’re walking we’re walking…

Welcome to the mid 2009 in England. The place is the offices of ACS:Law UK, Andrew Crossley has just jumped in feet first into a business model abandoned by another lawfirm. The game is “speculative invoicing”, a company collects IP addresses and turns them over to the lawfirm for a fee. The lawfirm then sends out invoices demanding money from people they claim airtight cases against.

And we are walking again, and welcome to 2010… Anonymous was here at this smoking crater that is the former offices of ACS:Law UK. They blasted the ACS:Law UK webserver, and in a move of sheer “genius” the entire contents of their servers were made publicly available. It proved that ACS:Law was using public records to make sure people they bothered to harass had the means to pay them. It proved even lawyers inside the firm were terrified of the public learning the 1 case they held up as proof of a win, would fold as it was shown to be a case where it was a default judgment against someone who might not actually exist as she was never served to be in court.

And we take a small hop across the Atlantic… And these are the offices of United States Copyright Group, it is a company a lawfirm founded to take the heat as they started filing “speculative invoicing” cases in the United States. Representing just movie super stars as Uwe Bolle (winner of the “worst director in the world” title), and a handful of other movies no one had ever heard of. Getting attention they then were able to land the film The Hurt Locker and later The Expendables. The Expendables hope to turn a dog from the box office into a blockbuster. They stand to extort more than the movie earned in release.

And another small hop brings us to Texas… Not to be outdone, the porn industry has been taking notes about this new money tree. Sadly they picked Evan Stone in TX and his Copyright Protection Agency. The first cases targeting remembers here are brought on behalf of Lucas Entertainment. Some nobody named TAC turns up, and proceeds to detonate the fear and mythology surrounding these cases. The crazy idea that an IP Address =! (if you’re not that kinda person that means does not equal) a person. The fact that during the RIAA lawsuits it was shown they had targeted and demanded a laser printer stop sharing the movie The Matrix. He might have also exposed Stones operation in a mailbox strip mall, and some other fun facts about our favorite moron. Stone lied on copyright applications, and is currently facing charges from a court for lying to obtain people’s information from ISPs.

The newest version of this game is us vs Liberty Media Holdings, represented by Marc Randazza. Marc Randazza has made some stupid public statements, and damaged the Corbin Fisher brand by creating the new terms of service that allowed them without much proof to demand you pay them $25,000. When they were publicly rebuked they changed the terms and tried to pretend it never happened. Randazza has said there is no chance anyone targeted in his scheme will be hurt by being forced out of the closet and had instructed them to lie about what they downloaded. Randazza has refined the approach and now seeks the court to find the people who pay the bill for the internet connection responsible for the download, if they themselves did it or not. He hopes to establish this so he can keep terrorizing people into paying his extortion, and if his other previous offers are a guideline he always leaves a way to pursue them again in the future for the rest of $25,000 based on nothing more than a hunch.

His IP data is being provided by a German company, this company has used contracts in the past that give them the right to create a “honeypot” where the information could be downloaded from. A Honeypot is where they upload something people might want and then record all of the activity as others download that file.

No court is aware of these tactics, and one would hope they would find it hard to accept the claims of Randazza when he allowed the creation of the problem merely to profit from it.

There are other cases, and other fun facts but nothing that exciting.

The shakedown works like this… They get a pile of IP addresses, they go to court and say we need to know who these people are we want to sue them for breaking the law. The court says okey dokey. They send subpoenas to the ISPs, the ISP alerts you your information is being sought.

You technically can try to fight the release of the information, but there are varying responses from various courts to these motions. The lawyer gets your details, then sends of a letter that sounds very scary. Then they send another, and another, and another. Randazza has added making phonecalls, and offers that are reportedly withdrawn after they get you to admit fault so they can leverage more money out of you.

To date, no case has been filed against a downloader targeted in these shakedowns. Update: USCG is pursuing a 70 yr old grandmother in MN… she doesn’t own a computer. They have gotten some uploaders, and are taking some parents to court to force them to finger their children. I am guessing these people did something to piss Randazza off to get such special attention.

To date no cases have been brought to court against those people who have been identified by their ISPs. These actions are meant to cause fear and extra money without ever having to prove in court their case, the court case could be devastating to the entire shakedown as question to how accurate and legitimate these claims are. If you have any doubt how relevant the information is a recent filing made by USCG included the IP Address of 8.8.8.8 as a downloader. The small problem is 8.8.8.8 is Google’s public DNS server, it can’t download. So the advice: read the letters, make sure you do not have to respond to the court.

Never talk to them on the phone. Never lie, but don’t offer to make their case for them. Saying on the phone “Yeah I did it but you’re an asshole fuck right off!” might feel good up until he files a lawsuit against you and uses your admission in court against you. You’re a college student, on a fixed income, etc etc… the term you’re looking for is Uncollectable. If you have nothing, the court cannot award them 50% of nothing. It costs them $350 to file against you, and the time to be in court. If they win $20.00 that seems to be running at a loss. They MIGHT pursue a few people this way, but they will mostly be for show.

There was a recent case filed against a BitTorrenter by Corbin Fisher, it settled for $250,000. The important facts in this case — He was a CF subscriber who was caught and caved when confronted. The $250,000 award was a settlement reached outside of court. The full amount of $250,000 never has to be repaid, as long as the guy makes his payments and is a good boy the amount gets knocked down. But the only headline anyone saw was CF WINS $250,000 IN BITTORRENT CASE.

I’m still not a lawyer, I am still not giving you legal advice. I invite you to use the resources on the EFF help page, some are better than others. Robert Cashman in TX has a blog where you can see his reporting on the happenings in several of these cases. Never assume a group offering a flat fee to get you a better settlement has your best interests at heart, $20 off the demanded amount is a “better” settlement.

We’ve reached the end of the tour, and now if you still have questions we can try to answer. This isn’t the end of the world, you’re not the only one being targeted in fact there are often innocent people swept up in this miscarriage of justice. Take a deep breath… and another… Educating yourself about these cases will help you to stop be so scared of the Boogeyman. I add my voice alongside Sophisticated Jane Doe’s offering you the one thing the trolls do not want you to have… knowledge.

I am and remain…
TAC.


Magistrate judge
Bernard Zimmerman

As expected by many, judge Zimmerman has practically dismissed (all the Does except one were severed) the “On the Cheap v. Does 1-5011” case filed by copyright troll Ira Siegel last year. Although the case was dismissed on the grounds of improper joinder and wrong jurisdiction, judge Zimmerman went much further questioning the entire extortion-like “business model”.

The entire ruling is amazing, not a single sentence is boring. Must read for everyone who has even slightest interest in these mass extortion-like cases (especially for the trolls!). I don’t believe that judge Zimmerman has read my blog (though it is not impossible since he is aware of my existence thanks to Mr. Siegel), but this is the first time a judge has commented on the foundation of the problem, and these comments were pretty close to my own opinions and the views of my brothers-in-arms. Although many injustices we’ve been discussing have not yet been addressed by judges, we are getting there, no doubt.

Please read the entire document, it is worth your time. Trust me.

Priceless.

(See the analysis by Rob Cashman)

I was reading various mass file-sharing lawsuit complaints recently and found out that they are heavily copied from each other. I was daydreaming how wonderful it could be if copyright trolls would sue each other for infringement…

Jason Fischer / Mark Randazza:

88. In the BitTorrent world, there is honor among thieves. Those who merely download files, without publishing and sharing files, are derisively called “leechers.”

Gill Sperlein:

29. In the eDonkey2000 Network, there is honor among thieves. Those who merely download files, without making files available in their share folder are derisively called “leechers.” The more files a user makes available in his share folder, the faster the system allows him to download files from others.

Andrew Contiguglia:

53. In the BitTorrent world, there is honor among thieves. Those who merely download files, without publishing and sharing files, are derisively called “leechers.”

[...and so on...]

Dear trolls!

I heard many times that “there is honor among thieves,” and I don’t care if it is true or not, because it is absolutely not applicable to file-sharing. Firstly, it is highly unprofessional for a lawyer to confuse theft with infringement. Secondly, peer-to-peer participants don’t give a damn about others, because they absolutely don’t know with whom they share their files. I don’t know about Bittorrent, but in eMule download speed is directly correlated with upload speed. So talking about accelerating downloads, you confuse common sense incentives with moral imperatives. It is not surprising since you obviously have a problem comprehending what moral is.

Could you please stop lifting nonsense from each other and start using your own ugly heads?

Thank you.


Mimi and Eunice by Nina Paley

I want to bring to your attention a rather unusual copyright troll lawsuit that is not covered by press yet, “Baseprotect UG, Ltd. v. John Does 1-X”, 2:11-cv-03621-CCC-JAD, filed in the New Jersey District Court.

This lawsuit differs from others in many ways, but the main difference is that the plaintiff is not a copyright holder of the movie that was allegedly shared, but a German IP-harvesting technology company Baseprotect. There is no indication that copyright was transferred in full to the latter. Plaintiff asserts that his standing to sue is based on an agreement with the movie producer to… be allowed to share the movie on p2p networks! Sounds like a Righthaven-style fraud to me (see the entire agreement at the bottom of the complaint below).

It’s not a secret that German IP-harvesting companies are in many cases the actual bosses of the ongoing scam. Lawyer firms that use speculative invoicing tactics try to make an impression that they hired those IP-harvesting companies on behalf of movie makers “victimized by piracy,” but it is actually the other way around. Stopping piracy was never a goal for the trolls. Even more — if piracy is somehow magically stopped, all the conspirators (a law firm, an IP-harvesting company and a rightholder) would lose an easy source of cash. So they are far from willing to kill the goose that lays golden eggs.


Bonnie C Clark

In my opinion, this lawsuit is doomed and will fall apart soon. I already mentioned that most likely plaintiff does not have standing to sue, but there are many other problems here as well. While other trolls proved to be inventive and able to change their tactics as judges invalidate particular maneuvers, such as improper jurisdiction and questionable joinder, lawyer Bonnie C. Park of The McDaniel Law Firm seemingly did not do her homework diligently and made every mistake that any clever copyright troll would avoid these days. This lawsuit lumps together defendants from different jurisdictions and from different providers. In addition, it is hard to believe that all the 1449 defendants used the same swarm.

Another oddity that I noticed is the fact that an obscure Polish movie “Weekend” that has a single very unfavorable review on IMDB caused such a great interest among US bittorrent users. My strong suspicion is that people confused it with the award-winning English movie, not released to theaters and media yet, also titled “Weekend.” I guess the con artists from Baseprotect did not have particularly hard time convincing a virtually unknown Polish film co-op to participate in a get-rich-quick scheme and capitalize on this coincidence. [Update: the case docket shows that many movants bear Polish surnames, so my guess may be incorrect. It looks like this move is popular among Polish-speaking community. IMDB ratings and reviews may not reflect the actual popularity of a certain movie.]

Although this particular extortion attempt is late and sloppy and the downfall of speculative invoicing in USA has already started, some folks will inevitably succumb to scary extortion letters and will unnecessarily part with a couple of grands, if/when ISPs provide defendant names to the lawyers. So sad.

I want to conclude this post on a bright note. This particular lawsuit is good news overall: such a brazenly fraudulent assault against common sense accelerates the process of washing off carefully applied make-up of righteousness from the ugly, greedy faces of other copyright trolls.

Update

If you are a victim of this lawsuit, look at this post: it answers many questions I usually receive. Though there is basically nothing new there, the relevant information (otherwise dispersed over posts and comments) is concisely put together by DieTrollDie. Actually, victims of other lawsuits will find this post helpful too.

In addition to this lawsuit, Jay McDaniel fired a couple more extortion campaigns, including

  • Baseprotect UG, Ltd. v. John Does 1-X (2:11-cv-02021-DMC -JAD) — dismissed 11/15/2012.
  • BASEPROTECT USA, INC. v. SWARM # 06159132D21BBC88ED40B6E51278879F2725243F et al (2:11-cv-07288-SDW-MCA) — dismissed 11/15/2012.
  • BASEPROTECT USA, INC. v. SWARM # 1277D1F87FA9C4F28D43D2C07E9EF6816E366ED1 et al (2:11-cv-07289-SDW-MCA) — dismissed 2/28/2013.
  • Baseprotect USA, Inc. v. Swarm # 2FB37F51EE4580E804848C519A227B03 et al (2:11-cv-07290-SDW-MCA) — dismissed 11/15/2012.
  • Baseprotect USA, Inc. v. Swarm # 6F3E88FE60CA4A30467E1F93EEDE61B787BFCE07 et al (2:11-cv-07291-SDW-MCA) — dismissed 11/15/2012.
  • Baseprotect USA, Inc. v. Swarm # C32E92D72464FFCA072C0BFAC77C5AD7F7584036 et al (2:11-cv-07292-SDW-MCA) — dismissed 2/28/2013.
Dismissed
  • All the Baseprotect cases, including the subject of this post, were dismissed on 2/28/2013 or earlier.
One of few remaining IO Group v. Does cases was voluntarily dismissed this week. Congratulations to those victims who did not succumb to threats. This case was dismissed without prejudice, but today it does not make any difference: copyright trolling “business model” in failing miserably and it is not plausible that anyone from this case will be pursued in the future.

This case was somewhat famous because of two defendants:

 
An interesting fact is that default was entered as to 5 defendants earlier, two of them were dismissed with prejudice later, defendant Young Lin was even dismissed twice: in Document 44 and Document 52. (Effectively Mr. Sperlein invented a new legal concept — double escape from jeopardy.)

So what about the remaining three? Seems that Mr. Sperlein completely lost interest in copyright trolling, otherwise I don’t think he would miss this chance to straighten his weapon of fear.

You can come up with a short answer to this question yourself after reading this wonderful quote from the movie The King’s Speech:

Lionel Logue: [as George "Berty" is lighting up a cigarette] Please don’t do that.
King George VI: I’m sorry?
Lionel Logue: I believe sucking smoke into your lungs will kill you.
King George VI: My physicians say it relaxes the throat.
Lionel Logue: They’re idiots.
King George VI: They’ve all been knighted.
Lionel Logue: Makes it official then.

When roughly half a year ago I found out that I was about to become a target of an extortion, information about the scam called “copyright trolling” was not readily available, unlike today. No surprise that my first move was about getting a legal advice, and I contacted many lawyers. After talking to dozen or so, I was somewhat stunned by the spectrum of their advice versions: it was extremely wide.

Some gave me good pieces of advice and explained real motivations behind the mass file-sharing lawsuits, but others simply tried to convince me to settle and hire them to negotiate a lesser amount. The reason for that is simple: those lawyers would take both my money and their cut of the settlement. Today I value the latter category almost as low as trolls themselves — because they help making this type of extortion business sustainable by feeding trolls the money that should otherwise have rightfully stayed in defendants’ pockets.

Given the incentive of a settlement cut and lack of ethics, those lawyers reiterated all the threats that I found later in the ransom letter: hardly a surprise.

Since the copyright trolling is still going on, albeit we witness the beginning of its downfall, many people find themselves in the situation of uncertainly and fear. No wonder they try to understand what is going on and ask for legal advice. One of the most popular legal Q&A sites is Avvo.com, where people can ask legal questions that are subsequently answered by licensed attorneys.

One such question was posted recently:

I just recently got some documents from my isp saying that i had downloaded something. I had got an email about something similiar. but the incidents were a day apart. i have gotten a few phone calls from the guy saying that he is a lawyer in the case and it can be settled if i give him $3400. he also said if i give him the money he wont name me in the case. It is Boy Racer Inc. vs John Doe 1-52. he has sent documents to my email but something does not seem right. What can i do to figure this out if this is legit? thanks for the help.


Maurice N Ross

This question prompted answers by four attorneys, three of them reasonable, but the forth answer, given by a New York attorney Maurice N Ross, has filled me with an outrage: it was so wrong in almost every sentence that I just couldn’t remain silent, especially knowing that many victims tend to believe a person who is supposed to understand the Law better than they do.

I discounted this reply as “hogwash” in the comment section, but I want to clarify why I did that.

Although I’m a bit emotional, I still hope that Mr. Ross is rather misinformed than he is an active troll supporter.

[...]
Whether you like it or not, your ISP address was associated with an illegal download, and plaintiff’s counsel has now figured out who you are and where you live. This means that unless you have valid defenses to the claims against you, you could be liable for copyright infringement—in which event you could be liable for statutory damages of between $750 and $150,000 for each illegal download.

Before a defendant can employ any valid defense, there should be a reasonable accusation, and the burden to prove the tort is still on plaintiff. 200,000 alleged downloaders are currently targeted, and how many courts found that the quality of plaintiff’s evidence is sufficient to prove the accusation? You know the answer, don’t you, Mr. Ross? Zero.

It is not a surprise that plaintiffs refuse to disclose the methods used for IP address harvesting, because otherwise they would have to answer very uncomfortable questions about the quality of such methods, especially in light of recent findings, when IP collectors were caught knowingly using error-prone methods. And I’m not even talking about a network printer that was listed in one complaint.

In addition to that, many judges asserted that an IP is not equal to a person, and therefore dragging an ISP-identified defendant through litigation is unjust. Note that a large portion of defendants run open wireless connection and cannot be held responsible for the illegal actions of others. Mark Randazza tried to come up with a novel theory, according to which running an open wireless connection would be treated as negligence, but his theory was crushed to pieces recently.

High amounts of damages are awarded for punitive purposes of the defendant is found to have engaged in willful infringement (and courts do not hesitate to find that defendants engaged in willful infringement).

This was the first sign of fear mongering that triggered my outrage. Can you back your words by facts, Mr. Ross? How do you know about court attitudes if these cases never found their way to actual trials (and I doubt they ever will)? If you are trying to scare us with the worst case scenario regardless how unlikely it is, what is your goal?

Here is your problem—whether you think the conduct if plaintiff’s counsel is sleazy or not, in all likelihood plaintiff’s counsel have compelling evidence that you (or someone who had access to your computer) illegally downloaded copyrighted material.

I already addressed the statement of “compelling evidence” above. This kind of “compelling” evidence recently resulted in a dead man sued, a blind man and a 70-year grandmother sued for downloading porn. Need more? Look at these letters from defendants.

It does not matter if this was an accident. Copyright infringement is a strict liability offense. Perhaps you have good defenses to this claim–but I seriously doubt it. Moreover, the cost of retaining counsel to fight this battle in court will be thousands of dollars—and this is not a battle that you can fight without a lawyer.

Wrong. Again, before one needs to engage defenses, a court has to buy the questionable evidence, and it never will. All these accusations are pure bluff. I do have a good defense: “I decline all your allegations and request a stricter proof. Don’t have any? I’m sorry about that; now please pay my legal fees”. And this defense did work recently: Gill Sperlein dismissed those who confronted him in such way.

Thus, my practical advice is as follows: First, hire a lawyer. If you don’t hire a lawyer immediately you are making a fundamental mistake. Will you have to pay for this? Yes. Is it worth it? Absolutely? Do you have a choice? Not really

It is up to you if you want to hire a lawyer, but it is stupid to do it unless you are named in an amended complaint. Prior to that you will be just fine if you ignore the trolls’ calls and letters and don’t talk to plaintiff’s lawyer at all. And the chance that you will be ever named is very-very low.

If you decide to hire a lawyer, it shouldn’t be just any lawyer, but a trusted and experienced in dealing with copyright trolls (that’s the entire point of this post). During my quest for justice, I came across some terrific lawyers, Stewart Keller and Rob Cashman in particular. You may also want to try the EFF list. Dan Booth and Jason Sweet are no doubt experts as well, as they are fighting the copyright troll #1 — law firm Dunlap, Grubb and Weaver in a class action. (DGW has introduced speculative invoicing plague to US.)

Second, explore with your lawyer whether you have any clear and obvious defenses. But my guess is that you do not have such defenses. If not, then instruct your lawyer to settle the case for you. Chances are your lawyer can reduce the settlement demand below $3,400 (although one way or the other, when you count lawyer fees and settlement costs, this is going to cost you several thousand dollars). By the way—you should not try to settle this without a lawyer—settlement papers and releases are tricky documents and you need to make sure that when you settle the case you do so in a way that makes sure it is dead forever.

I already explained my disgust of this “solution” above. The extortion scheme exists because people pay out of fear, ignorance and advices from unethical lawyers. I have no moral right to talk people from settling, as I have no right to talk them from buying a multi-thousand-dollar insurance covering damages to one’s vehicle if hit by a flying cow.

“But my guess is that you do not have such defenses” — another fear-mongering remark. You have already made a judgement that the person, who asked the question, is guilty, didn’t you, “Your Honor”? If you believe in impeccable evidence that trolls possess, it is at least understandable. But reality is different, and, among many other injustices, collateral damage inflicted by these lawsuits is unacceptably high. I personally belong to collaterally damaged, and it is not fun. If you forgot the Blackstone’s formulation, I will remind it to you: “better that ten guilty persons escape than that one innocent suffer”.

You say you don’t have the money for this? I feel your pain. Times are tough.

 
If I read this paragraph out of context, I would think that it is an Al Capone’s associate talking to a store owner.

But you need to come up with the money for a lawyer and settlement. If you do nothing, there is a very strong likelihood that a default judgment will be entered against which would be traumatic.

Another misleading statement. Yes, if you do nothing, a default judgment can be entered against you. And I clearly advice not to ignore any mailings from a court, but ignoring any communications from a troll is the only right thing to do.

But it absolutely does not imply that you need a lawyer — even at this point. You don’t have to come up with money because it is inherently unjust to pay either a troll or a lawyer in order to prove your innocence.

Also note that Mr. Ross omitted two important points: wrong jurisdiction and improper joinder. Almost every day we witness troll cases being dismissed because of these issues. So if there are many out-of-state defendants on the case, or many movies/swarms are lumped in a single lawsuit, it is a very good chance that your case will be dismissed as well.

Getting back to the topic, I encourage all the victims to think critically and not to fall for traps. It is tempting to follow a recommendation without thinking twice, but I encourage you to use any advice, either from a lawyer or from an “educated amateur” like myself, only as a single drop in the vast ocean of common sense.


Mimi and Eunice by Nina Paley