Why you shouldn’t heed an advice just because it was given by a licensed attorney

Posted: September 2, 2011 by SJD in General
Tags: , , , , , , , , ,

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

About these ads
Comments
  1. dietrolldie says:

    When I read “But my guess is that you do not have such defenses,” I was amazed. He knows nothing of the individual, specific details, or the Troll tactics. Sounds like this guy is just interested in settling because it is easy and it keeps the money flowing. Sad. Love the movie quote.

  2. John Doe says:

    I wwas subpoena 3 months ago and have not heard anything since. Rfcexpress doesn’t seem to be updating the case so far and just shows the initial 350$ payment by plantiff. I have not looked for an attorney yet.

    How does the whole being named in the lawsuit work? Could it be possible that I was named but never notified?, could I potentially fall into a default judgement without even knowing that I was named?

    • 1. RFC Express: There is a link at the bottom of the docket list called “Refresh”. If refreshing yields no new documents, it means no new documents were filed.

      2. The possibility of you being named is very low and does not justify expenses for a lawyer at this phase. Please read the FAQ.

      3. Once ISP reveals your name, you will not be named (and most likely will never be named), but expect scary letters and phone calls. Don’t reply to them. Please read the FAQ.

      4. To enter default you have to be served using certified mail – proof of delivery is necessary, so there is no way you miss it.

      • John Doe says:

        Thanks, looks like they filed a motion for extension of time to file proof of service of summons and complaints over a month ago. The docket text did not update so I am not sure when their deadline is.

        I have not received a settlement letter or have been contacted. Does this mean there is a certified mail on its way or they are going to sue me individually in a different case.

        • What mail? If this case progresses at all, the “certified mail” phase would happen half a year from now. And it is not likely to happen anyway given the state of affairs right now. Please read the FAQ.

        • Anonymous says:

          I received a certified mail from my ISP regarding the subpoena… is that what would cause a default decision if I don’t file a motion or is it another eventual letter that I need to look out for?

  3. davey vane says:

    I also think ross is a jerk. he keeps saying “you need to…blah,blah,blah”. Well he needs to change his face

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s