Do you still think that talking to plaintiff’s lawyer is a good idea?

Posted: October 14, 2011 by SJD in M. Randazza
Tags: , , , , , , , , , ,

I’m never tired of repeating over and over again that talking to plaintiff’s attorney (a copyright troll) directly, not through your own lawyer, is not only a questionable idea, but just a plain stupid idea. Reading numerous comments on TorrentFreak, ArsTechnica, Techdirt and other discussion boards, I sometimes see someone bragging: “If I received a call from a troll, I would tell him…” Wrong! You don’t want to tell him anything. Just hang up. Ignore emails and scary ransom letters¹.

TAC has pointed to a very-very sad story: a guy from one of the mass Liberty Media Holdings lawsuits received a call from an attorney notifying him that his IP address was recorded in connection with sharing a copyrighted material on BitTorrent, demanding money and asking questions. Instead of hanging up, this guy did the worst thing possible: he answered the questions and admitted that he downloaded that damned movie! He explained that he did not know that it was illegal, probably thinking that a reasonable copyright holder who cares about its business would say something like “ok, you are a good guy, and we appreciate the interest in our studio products, what you did was illegal, please stop doing that and here is the URL where you can buy and enjoy our products legally”. Note, however, that here we are not talking about copyright holders who are interested in retaining fans and promoting their products. Instead, we are talking about scum of the Earth, disgraced attorneys who can’t think about anything but money right now with as little investment as possible. Ruining someone’s life for a $40 movie is something that these vampires wouldn’t hesitate to do if it could possibly bring them a couple of dollars.

So what happened next? As a result of this phone conversation, our former Doe, now a named defendant, got himself an individual lawsuit, in which the trolls are accusing him of willful infringement (up to $150,000 “damages” sought – the complaint is embedded below).

13. When counsel for Plaintiff contacted Fraga regarding AE3 Lawsuit, and after counsel advised Fraga to seek legal representation, Fraga admitted to using BitTorrent to download and share the Motion Picture. Fraga took the position that the unlicensed copying and distribution of the Motion Picture over a BitTorrent file sharing network was somehow not illegal.

14. Fraga, who was Doe 19, has been dismissed from the AE3 Litigation in lieu of the present proceeding. Given Fraga’s admissions, Plaintiff has opted to pursue its cause of action against him individually.

If not for this confession, there would be no way trolls could prove the tort; they just don’t possess any court-grade evidence. Bluffing works in Poker, bluffing worked here.

So, do you still think that talking to a random lawyer on the phone and answering his questions is a good idea? If you do, please see your physician as soon as possible.

The trolls involved in this assault:

Marco Randazza, the most hypocritical troll as of today: one of his hands defends Righthaven victims, the other wanders in similarly abused citizens’ pockets.

 

Aaron Silverstein, a thin-skinned troll, whose feelings were hurt when I included him in my copyright troll list on Twitter.
 

Note that the troll attorneys think that

The conduct of Fraga is causing and will continue to cause Plaintiff great and irreparable injury.

This is not only laughable, but the direct opposite of the truth: it’s not Fraga, it’s you, trolls, who cause irreparable injury to your client’s business by methodically destroying its reputation.


¹Of course don’t ignore summons if you are named in a lawsuit.

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Comments
  1. DieTrollDie says:

    Well it looks like this guys is going to get nailed to the cross for this. The reason they will likely go to court instead of collecting the settlement amount is because the Trolls need to have some case they can actually show went to trial and they won. As you stated it will only because the poor fool talked to the Troll without a lawyer on his side. Don’t do it people!

    DieTrollDie :)

  2. Ninja (@icanhazsake) says:

    Derp, He believed there’s goodwill there and probably was thinking of reaching a solution where he could buy the stuff legally. But as you said they are not interested. I for one would tell him to talk to my hand =D

  3. Ron says:

    “13. When counsel for Plaintiff contacted Fraga regarding AE3 Lawsuit, and after counsel advised Fraga to seek legal representation”

    BS, they advised him to seek legal help? Is there a recording of this so called “advisory”? Or proof that he admitted to downloading the file?

    They still have long ways to prove it! Even if he admitted to it. He can claim he felt intimidated by the extortion and thought that it would make it go away if he admitted to it. They would still need to prove their IP collection method. That is if the poor guy seeks legal help.

  4. lucas says:

    That is the dumbest move I have ever heard of, he played the “I didn’t know it was wrong” trick and admitted to everything to a F…king troll. Either he is too naive or just plain stupid. This already happened to a different individual, Maria (google), where she admitted to downloading a file because she thought it was something else and the troll named her in court with a big smile.
    He’s best move NOW is to play the “I accidentally hit my head and now I have amnesia” card.
    If you’re still trying to think about it, GET A GOOD LAWYER.

  5. skruuball says:

    Check this one out. This same troll filed this same memorandum in Western N.C. My favorite part is in paragraph 26 where he says “A movant seeking severance self-identifies himself or herself as likely being a person worth suing individually. ”

    Because, of course, only guilty parties would object to their ISP giving their personal information to ethically-challenged attorneys so those same attorneys could harass them into a settlement.

  6. TAC says:

    This case makes me sad. I have advised many people named in cases like this, in my not a lawyer not even one on TV capacity, and the rule of thumb has always been never talk to them.
    The newer version of this is, I do not speak with people threatening legal action against me for something I do not understand. Good day. Click.

    Never tell them to F off or any of the other things that make you feel good in that moment.

    I did a quicky look into the named party, several people with the name but I think he is younger and has most likely ruined his future as his name is now Googleable tied to a lawsuit.

    Without you helping they have little hope of making a case stick against you.
    You might not actually be guilty of what they are accusing you of, I have no illusions that everyone who gets the shakedown letter is a 90 yr old who can barely use a computer, but I can’t believe everyone targeted is guilty.

  7. Anonymous says:

    I honesty don’t even think his future is ruined. I work for a corporation and googling prospective employees for bittorrent cases isn’t part of the process. Now if this guy has a house or 20,000 in the bank then he might as well coughup the exaggerated settlement amount. Instead of a few grand he will pay more. These cases are not the end of the world. Most people will settle and lose a few grand. The educated will be harassed with letters and threats for awhile which they’ll ignore and a few will be named and should find a lawyer. People(including myself) need to put things in perspective. Americans are losing their 401ks, homes and jobs everday. This sucks, but I don’t see this as life altering as the trolls try to convice us. Live above the fear. Maybe i am just trying to see the bright side though

    • DieTrollDie says:

      No this is not the end of the world, but it can still suck pretty bad. The thing that really sucks for this Doe, is he is NOT the first one to talk to the Trolls and admit his actions. It is just that the these lawyers want to use this case to go to trial. Why? Because they know they can be assured of a victory in the court other than a default judgement. The Trolls have had plenty of opportunity before, but they decided to take the money from an agreement (settlement letter) instead of going to court. Now they want the court judgement so they can show it as one of their victories. This should now sherve as an extra warning to those people who were thinking of settling – The Trolls may come after you to make a point. Welcome to the evolution of Troll Warfare!

  8. anon says:

    I think that an interesting scenario if ever personally named would be to demand a jury and simply say “prove it was me”. If you live in a household with multiple members that argument would be difficult to make for them. They would have to make some sort of argument that you were legally liable for what some other person did on a computer you were paying internet service for…which I don’t think that they can make. With that in mind Im wondering just how many of these named individuals are single people living alone? The trolls have to be aware of this very simple hurdle.

    • skruuball says:

      I would love to see them try to prove their case in front of a jury based only upon an IP address. It should be nearly impossible unless they actually find the file on a computer that belongs to the end user.

      One of the first things I would want to do is to examine a copy of the software used to gather the addresses — to actually have a technical analysis done using a working copy of the software. We should not simply take their word for it that some guy in Germany has a foolproof method for identifying torrent users. I am a computer systems engineer with over 15 years of experience performing debug level analysis of complex technical issues. Their tech analysis is flawed in a number of ways.

      To posture the IP address as definitive proof that the defendant is guilty ignores several facts.

      1. Wireless routers ship with security disabled by default. Is it reasonable to expect that the average user is going to know to secure the router?

      2. Even if a router is secured using WEP or MAC filtering, neither is terribly secure. There are free downloads that can be used to crack a WEP key or clone a MAC address within minutes.

      3. There are free downloads that can be used to easily spoof an IP address to hide the true IP a device is connecting from.

      In the absence of a unique identifier for a specific computer or device (e.g. MAC address), I honestly don’t see how a case can be built based solely on an IP address.

      • You guys are absolutely, positively right. I’m sure trolls know that as well, that’s why they use their snake tongues to keep the cases on the verge of the courtroom: from one side they have to to create an illusion that they are going to sue you, but on the other side they scared of the prospect that the suit may enter the argument phase, because then there will be the end of their business, kaput.

      • Anonymous says:

        That’s exactly what would happen if the EFF ended up taking a defendant to trial or someone sprung for a competent IP lawyer. Ask for the source code to all the tools they use to gather evidence and have it audited to make sure it works. Doubt any of these firms would let that happen.

        • Drown The Trolls says:

          I’ve been investigating that aspect myself. From what I can read these so-called ip tracking programs are nothing but modified bitorrent clients under a GPL license. It’s also unsurprising that the companies using them are located overseas well out of US jurisdiction.

  9. skruuball says:

    I am sure that there is a reason that they’ve chosen to employ somebody outside of the U.S. to do provide the IP addresses. It probably has to do with keeping the software, or the person using it, unavailable to the defense for examination. There are plenty of investigators in the States who could perform the dirty work for these douchebags. Hell, there are plenty of 12 year olds who could do it.

    The software (IPP) conveniently does NOT appear to perform some very basic tasks that could more easily link a connection to a specific device (rather than just an IP) but would also reduce the false positives as well. If the goal is to cast as wide a net as possible (and if the investigator is being paid per IP address), they don’t want to do anything that could narrow the scope of the case. Their business model is to subpoena as many IP addresses as possible because they KNOW that a percentage will settle. The more subpoenas they send, the more money they make.

    I see absolutely no way that they could prove infringement based solely upon the IP address. They would have to search for and find evidence of the file on a device belonging to the person, a network trace, or some other evidence to corroborate the IP address. Otherwise, it would be kind of like trying to convict someone for making threats based solely upon the reply-to address from an email (take a look at your junk mail folder to see how easy it is to spoof an email address!).

    If it were not cost prohibitive, I would gladly give them my information so that I could challenge the technical aspects of the case. I really don’t care if my name gets linked to a porn video — in part because I did not download or share a copyrighted work, but also because I don’t find it embarrassing. A good portion of the adults in the world watch them. So what? You don’t like it, don’t watch them. Fact is, I would rather spend $10,000 on legal fees to fight them than let them extort one penny from me.

    • Anonymous says:

      I would also bet on a modified open-source BitTorrent client. Seems like the obvious approach. From a startup cost perspective, I doubt anyone would sink money into hiring programmers to write tools from the ground up before they could even start filing cases, so my guesses range from something as simple as a guy running a BT client and copying and pasting IPs into Notepad, to basic modifications to an open source client to automate monitoring and IP harvesting. I would be surprised if it went further than that, especially since they admitted in at least one case that they have no capture of the data stream to and from the infringing IP that would back up their assertion that an illicit data transfer took place.

      The trolls are probably just too clueless to do this work themselves. I thought the German IP harvesting guys got their start feeding ACS:Law, so the scam has its roots in Europe. Remember the trolls do not have an IP background, so they likely have no perspective on the technology and may not realize what a trivial job it is to gather IPs. I mean most of the copyright trolls probably didn’t even know what an IP address was before they jumped into this business, and they likely still have no real idea of what it all means and how it all works in the context of the Internet’s architecture. If you had absolutely no idea where to start, and it sounded like confusing tech jargon you will never understand, but some guy is just offering to do it for you for a fee, what would you do? I would be really curious to know what they pay per IP, if it’s more than a few bucks those German guys are laughing all the way to the bank.

  10. Anonymous says:

    EVERYONE! Remember that the trolls use VERY sneaky tactics… i filed a motion to quash which I signed with email address and the subpoena did not continue for one reason or another… I soon got a suspicious email from random person asking me questions… All signs point to the plaintiff’s lawyer or other scumbag tring to have me discuss things that can later be used against me… I was close to resonding but luckily I thought it through and completely ignored it.

    I plan to write a letter to my congressional reps as I didn’t do anything wrong and went through this horrible escapade. No one should have to go through this especially when completely innocent as I was.

    I recommend we all write our congressional reps and hopefully they can close this loophole that allows for frivolous extortion of anyone and everyone who can’t afford to defend themselves.

    • DJ says:

      more power to him! he seems to have a difficult time filing before deadlines though. hope the judge is understanding.

      • Yep, I follow this case. It is also interesting that Fraga is facing two mature wolfs here: A. Silverstein and M. Randazza. I don’t know much about the former, but the latter has jaws of steel. If Steele barks, but not bites, this one is the opposite – a tough asshole.

        • Raul says:

          This guy is my hero . He is keeping the trolls in knots all the while positing some decent legal argumenst. I really like the one that the plaintiff has exhausted its statutory damages claim because it has preyed on so many previous defendants.

        • PAJohnDoe says:

          On that docket link above, it looks like Fraga got a lawyer and filed a counter-suit.

  11. [...] Wrong! Given the history of Prenda Law (as well as any other troll), out of 300,000 targets, not a single person was found liable based on merits. All the “victories” either resulted from default judgments (when a person ignores court orders — not wise) or instances when a not litigation-savvy defendant incriminates himself by talking too much. [...]

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