Archive for the ‘General’ Category

Foreword

The open letter to the founder of Hustler, Larry Flynt, presented below was accessible via www.anopenlettertomrlarryflynt.com up until recently. Apparently, the author of the letter let the domain name registration expire, probably thinking that his plea was not relevant anymore (it was 100% successful). If this is the case, I strongly disagree: this letter is well versed and expresses the thoughts that many (including me) have grasped only a year later, and this letter is positively relevant to the current situation. Therefore, I wanted to preserve this excellent write-up here.

I learned about this letter from TAC, who told me the story behind it:

Hustler made a porn parody of Avatar. They retained infamous Evan Stone after he went to a porn convention to drum up his business. Shortly thereafter, someone posted an open letter directed at Larry Flynt on the web, explaining how this would be bad for them in the long run. They directed Stone to drop the cases. Stone went out publicly calling them not nice things and saying they lacked courage or was it balls. He claimed he was done with porn, but then later was working for Mick Haig and had his name on some cases for Debbie Does Dallas. I think he had lost some luster being the copyright troll fired by Hustler after his big showing at the convention.

In a recent Slashdot commentary, a network admin working for a porn producer, articulated his thoughts about one of the vilest porn copyright trolls of today, John Steele:

John Steele is pursuing a business model that the industry does not support, and it doesn’t want the attention it is generating. I happen to have talked to some of the guys behind the content he is actually suing over and these are the most right wing nutcases you could ever hope to avoid. The majority of porn producers stay well clear. They listened to their geeks and saw how what was not working for mainstream content also would not work for them.

Putting all the pieces together, I find it very encouraging that most respected adult producers, those who value their fans and think about the future, despise the “business model” of copyright trolls, which

  • does not solve the piracy problem;
  • does not help to recoup (questionable) losses, instead bringing misery upon tens of thousands of US families (many of which have nothing to do with the alleged wrongdoing) and only enriches ethically challenged lawyers;
  • immensely damages reputation and repels potential customers.

 

I plan to use this text to contact other big name produces (PHE, Inc., for example), who recently jumped on the trolling wagon possibly after listening to sweet speeches of scum lawyers — such as John Steele, Keith Lipscomb or Gill Sperlein, and did not think well about both apparent immorality and inevitable negative consequences of the awful decisions to employ the said scumbags.

 

An open letter…

Dear Mr. Larry Flynt,

I have been a fan of you and your work for a long time. I’m not sure exactly when you entered my awareness, but I’m betting I wanted to look at Hustler as soon as I found out what it was. When I learned about your life through The People vs. Larry Flynt, I was impressed that one person with enough willpower and focus could fight for what was right — and win. I congratulate you on all your success and sincerely wish you the best. However, I am concerned by something with which your company is currently involved.

I recently received notification from my internet service provider that my personal information had been requested as part of lawsuit filed by a law firm representing your company, Larry Flynt Publications, Inc. It stated that my IP address had been recorded as one that received a file via a torrent downloader, a program that downloads large files in pieces via a peer-to-peer network. I contacted the law firm listed for more information and received this reply:

We have subpoenaed your records from [redacted] because it was found that your Internet account was used to unlawfully download and distribute a film, [redacted], from our client (LFP Internet Group) and you are being sued in federal court. Your ISP is letting you know that we have subpoenaed your records and will be releasing that information to our office.

The letter seemed more concerned with frightening me than with explaining what had happened. I searched my computer, which did not yield the file. After a series of internet searches, I got a better idea about what, exactly, was going on.

Lawsuits of this type are based on the fact that torrent downloaders share bits of a file as they are downloading it. Some people claim that this constitutes copyright infringement, because downloaders are also distributing the file. In fact, most downloaders only upload what amounts to a few seconds of a video — a few drops from a whole swimming pool.

Yet these downloaders are threatened with the maximum penalty for copyright infringement, which can include fines up to $150,000, jail time, and payment of the plaintiff’s legal fees. The penalties are so high for two reasons. First, copyright law covers both those who prevent originators from making money off their intellectual property and those who make money from its illegal distribution. Second, there is no agency tasked with the enforcement of copyright laws. It is up to the victim to prove that his copyright has been violated, take the lawsuit to court, and prosecute the perpetrator.

To sue a single person, who did not make a cent, for up to six thousand times the retail price of a file seems to be a perversion of these laws. Yet such people are sued by the thousands. Because these files are so readily available on the internet, the majority of users do not understand the legal complications of what appears to be just another download. They do not understand that they are doing something wrong. When the average internet user is informed he has broken the law, he doesn’t understand the charges, since he likely still associates ‘copyright infringement’ with selling bootleg VHS tapes. Confused and presented with an ambiguous letter that threatens massive fines and jail, he is then offered a chance to settle. He has two reasons not to fight the charge in court: attorney fees and the prospect of testifying about his consumption of pornography. This system leaves the victim with contempt for the law and the people who exploit it. No lesson is learned, and the law and its punishments do not contribute to prevention.

These lawsuits are not designed to come to court, Mr. Flynt; they are designed to encourage a settlement. When a representative of a large group threatens to make trouble for someone, then offers to take a payment in exchange for stopping that trouble, and finally inflicts said trouble when payment is not received, it is known as Racketeering. It now appears that law firms are starting up specifically to run this racket.

At this point, I had to know more about the firm that your company, Mr. Flynt, would chose to represent your name and products. Given your auspicious and well-documented history with the courts, I assumed you would obtain counsel from an established expert in entertainment law. Instead, I was introduced to Mr. Evan Stone. I went to his law firm’s website and found almost nothing. Apart from some Orwellian generalities, the website is nearly empty, consisting of nothing more than a homepage. The only link — to contact information for Stone’s law firm — yields a 404 Not Found error. I checked to see if the domain was new, assuming it must be, and I found that it is nearly seven years old. According to Mr. Stone’s LinkedIn Profile, he bought the domain before he became an attorney, when he was working in a technical capacity at a local internet provider. His profile shows that he spent eleven years in various technical and entertainment fields. For the past three, Mr. Stone has worked for a small company that acquires and redistributes videos on the internet, specifically to “investigate copyright and trademark infringement” and “create a toolset and procedures to predominantly manage and automate the aforementioned tasks.”

Mr. Flynt, if your company is interested in preventing its property from being taken, it could have found a better man. Mr. Stone appears to have the technical and legal expertise to become a leader in the reform of copyright law for the digital age. Instead, he has chosen to create an automated process to make as much money off as many people as he can. Curiously, Mr. Stone has only been licensed with the State Bar of Texas since May of 2010. I found it surprising, since his firm is currently pursuing four different lawsuits similar to the one I was contacted about. That makes over 1000 John Does — with Mr. Stone planning on an average of $2,000 per settlement, two million dollars in less than seven months as a lawyer.

Mr. Stone’s method might seem more ethical were it not for the Copyright Defense Agency. You’ll have to Google this one, Mr. Flynt, as it violates their terms of use to link to them. I hate to break it to you, but there is no Copyright Defense Agency. It is nothing more than an LLC owned by Evan Stone. Its website, as hollow as that of Stone’s law firm, was launched on June 25th and has nothing more than a link to some pages of copyright law and contacts that lead back to Mr. Stone’s law firm in Denton, TX. The name of the Copyright Defense Agency and its website are designed to create the impression of a government agency — right down to its large, official-looking coat of arms. Ironically, that coat of arms belongs to the East India Company, another compassionate and ‘people first’ company.

Mr. Flynt, I agree that wrong is being done when someone downloads a file from the internet without paying for it. I also agree that someone who willfully distributes copies of a file — for free or for profit — is infringing on copyright. I will never agree, however, that someone who downloads a file for a few viewings (and probably destroys it shortly thereafter) should be prosecuted so exorbitantly, and in a fashion that doesn’t help prevent future crimes from being committed. If Mr. Stone’s firm were interested in stopping crime, his subpoena notice would have also included an order to destroy the file. Instead, the intent of his lawsuits and of others like it is to make more money from copyright violations than the actual sale of the film would have earned.

Mr. Flynt, we are living in the future. We need to bring the laws and their enforcement into the future with us, especially when those laws are being applied to things that didn’t even exist when the laws were written. You have the fame, the clout, and the position to spearhead improvement of how trade in digital media is regulated, controlled, and tracked on the internet. At one point in your life, you fought until our understanding of the Constitution itself evolved to meet the demands of our time. You have another opportunity to change things. Please drop these terrible lawsuits, Mr. Flynt. Challenge the people in your company to care for your intellectual property better. Take steps to educate the public about illegal downloading on the internet, and work with providers to prevent it.

I want to thank you for your time, Mr. Flynt. I normally wouldn’t do something like this, but I can’t explain how angry I became when I started to uncover all that is going on. To me, “freedom” is more than simply a word to help sell cars. You have fought for real freedom your entire life, and because of your work, all Americans enjoy expanded rights. I believe that those rights are also a responsibility, and we have the responsibility not to abuse them at others’ expense. The law is designed to help and protect people, not to be used as a weapon.

Sincerely,
Jay Flatiron
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.

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

Below is the comment to my recent post “Why you shouldn’t talk plaintiff’s lawyer” submitted by a blog’s reader and contributor (DieTrollDie). The cake analogy was so good that I decided to post the entire comment here.

Thank you for the video. Wow, that really takes me back. My previous career was in criminal investigations and so much of what was said on both sides is true. I did like what the cop at the end — that he doesn’t target innocent people. That is one thing that differs from the Trolls. For the police, they are charged to prove or disprove an allegation. The Trolls do not care. They don’t care if someone used your Internet connect (without your permission) or that your WiFi was “Open.” All they care about is getting you to pay the “settlement” agreement and keeping your mouth shut on their tactics. Proving or disproving that you actually did illegally download copyright protected material is not something they want to do. Don’t let someone tell you they are protecting the rights of the copyright owners. The settlement letters and telephone calls are only used to get your money. The Trolls do have the same opinion as the cop, in that “your client is stupid,” or that “the registered IP owner is stupid.” And both are correct. I don’t say that to be mean to all the people who have paid the Trolls, but let’s be honest. If this wasn’t the case, the Trolls wouldn’t be making so much money. The Trolls are not running a full and thorough investigation. Money and greed motivated their business model.

Let’s do some simple math — Case against 300 Does; Trolls have an estimated settlement return rate of 50% (Unk, just an est.); Say $2,500 per settlement; 150 X 2500 = $375,000; Split that with the original owners; Go party; Start more case and repeat the cycle. You get the picture.

The bottom line as the professor stated — Don’t talk to the Police (or Troll). It will do you NO good. The Troll doesn’t care and will only try to use it against you. If it goes to court (doubtful), there will be time enough to get your information out and prevent being abused or taken advantage of.

When I was a new investigator, I had an instructor liken running an investigation to making a cake. To make the cake, it took many different ingredients (part) and steps to reach the conclusion (finished cake). One of the last steps is often the interview of the suspect. If you got the suspect to admit to the crime(s), that was the icing on the cake. Point being that if you case (cake) was already good; the confession was the sweet topping that ONLY added to it. If a person refused to talk, the cake was still good and a prosecutor could still use it. I like my cake with icing, but I will still eat it without it. My point to the “Cake” story is the Trolls do not have even a basic simple cake built for any of their cases. What they do have is the information that an IP address allegedly illegally downloaded copyright protected material. As far as the cake building goes, the IP address they have obtained is akin to having a bag of flour. The Trolls know that having one ingredient (IP address) does not make a cake (solid case). So instead of gathering the remaining ingredients and taking the proper steps to make the cake (proving their case), they send out a settlement letter to the IP owner. This is where the message in the video is key – “Don’t talk to the Trolls; It will do you NO good.” Right now the Trolls have nothing; If you talk to them, they may obtain something to help their case.

As stated in this forum, if you are formally names in a legal matter, do not ignore the Trolls. If you ignore them at that point, the Trolls may obtain a default judgment against you. Make them “prove” their allegations and show you their “Cake.” I bet it tastes like “crap!”

John Doe

Embedded is an excellent lecture by a law professor explaining why you should never talk to police. Why am I posting it and how is it related to the topic of this blog? I see a great similarity between police’s and copyright trolls’ methods of provoking self-incriminating statements by deception.

Imagine that you wanted to download a different file and were fooled by the file name. You may think that explaining this fact to a troll will result in dismissal; but you are wrong: all you are doing is admitting the guilt, and you may be still liable for unwillful infringement (up to $30,000 per work per infringement). As Sperlein scoffed at Mayra Gonzales’ letter,

…I don’t think that someone searching for stolen content but simply got the wrong stolen content is going to prove they are an innocent infringer…

On the other hand, if you are silent, it is trolls’ duty to prove their allegations, and given the quality of evidence they have plus growing awareness about their extortion scheme, it is extremely hard for them to do.

Followup

DieTrollDie’s input:

A couple of weeks ago I published the Motion to Quash or Modify Subpoena template that this blog’s reader, Sy Ableman, created. Yesterday he emailed an updated version with the following explanation:

Hi Jane,

I’ve gotten quite a few emails from people who have used my motion to quash template, and I’ve also read responses from Steele Hansmeier that readers have forwarded me.

Some funny bits in their responses, such as “The list of permissible grounds for quashing or modifying a subpoena does not include ad hominem attacks See Fed. R. Civ. P 45…” in reference to the part in my motion about their abuse of the litigation system, which I didn’t even write. It came from a decision I quoted, that was written by a federal judge who presided over one of their BitTorrent lawsuits.

One thing made me want update my Motion to Quash template. The responses always claim that the BitTorrent protocol behaves in a different way than the other filesharing protocols used in earlier cases which were severed for misjoinder. This simply isn’t true. As I mention in my updated motion to quash:

… the analysis [does not] change because the BitTorrent protocol works by taking small fragments of a work from multiple people in order to assemble a copy. Nearly all of the older protocols in the aforementioned cases work in this fashion. Kazaa, eDonkey and various Gnutella clients (e.g., LimeWire) have incorporated multisource/swarming downloads since 2002.

I’ve also added some more lines to the list of BitTorrent cases severed for misjoinder, and some additional quotes from judges who have denied SH’s discovery.

I would like to encourage your readers, in the comments section of where you post this, to add cases and quotes from judges which I did not include.

Sy Ableman

Thank you, Sy Ableman!

Click to open or download the updated document: MOTION TO QUASH OR MODIFY SUBPOENA (updated).

(If your word processor does not understand Open Office format, let me know: I’ll convert and upload this document in other formats.)

Also, I think it will be helpful to see trolls’ responses to motions based on this template, so defendants could modify their motions accordingly. Please point me to those responses, and I will fetch them from Pacer, upload to Scribd and post the links here.

I suggest recording every phone conversation with a troll. If the situation develops as I expect (similar to UK — investigation and disciplining), these recordings may help investigators. Also, in the unlikely scenario of actual trial, these recordings may be played in front of the jury, which certainly won’t help a troll defend his “good faith” methods.

One of this blog’s readers also suggests reporting trolls to law enforcement authorities. I don’t know if it works, but it is worth trying — there is nothing to lose if acting discretely. But keep in mind: if the troll learns what you did, he may go after you.

In order to make sure the recording is legal, you must notify the troll that you are recording. This Wikipedia article explains the US recording laws.

The notification is necessary because California is a two-party state, and

If a caller in a one-party state records a conversation with someone in a two-party state that caller is subject to the stricter of the laws and must have consent from all callers (Cf. Kearney v. Salomon Smith Barney Inc., 39 Cal. 4th 95 (2006)).

If you and your troll are not from California, refer to the list of two-party states in the article.

Accepted forms of notification for recording by a telephone company

    The FCC defines accepted forms of notification for telephone recording by telephone companies as:

  • Prior verbal (oral) or written consent of all parties to the telephone conversation.
  • Verbal (oral) notification before the recording is made. (This is the most common)
  • An audible beep tone repeated at regular intervals during the course of the call.

Note that the law re: verbal is not worded “consent” but “notification” Notification as the FCC defines.

    Monkey trap (plural monkey traps)

  • (literally, probably folk-lore) A cage containing a banana with a hole large enough for a monkey’s hand to fit in, but not large enough for a monkey’s fist (clutching a banana) to come out. Used to “catch” monkeys that lack the intellect to let go of the banana and run away.
  • (figuratively) A clever trap of any sort, that owes its success to the ineptitude or gullibility of the victim.

 

Copyright trolls hate light and try to avoid publicity, so that they could continue their shady shake-down business. They are not too stupid and do understand that earlier or later their scam will be brought to light and their little extortion enterprises will melt as a result. That’s what is happening with ACS: Law in Great Britain right now, but not in the US yet.

So, rationally thinking, the lower they lay, the longer the ransom cash will flow. So why do they allow obviously wrong cases to continue? These cases get publicity and draw attention that clearly harm their “business” model. For example:

I can go on and on, but you can google these stories, there are lots of them.

What is striking is that in every such case trolls continue to press charges instead of letting clearly innocent people go. These extreme cases are usually related to just a small percentage of their victims, and letting these victims go wouldn’t seriously undermine their extortion revenue, and at the same time they would avoid harmful publicity and general public’s mounting rage.

The answer is simple: greed. Like in monkey trap cases, they just can’t let a banana go to save themselves from being caught. Unlike monkeys, they understand the situation, but obviously greed dominates common sense inside their hard sculls.

Greed destroyed Andrew Crossley in UK, greed will eventually destroy the US copyright trolls.

So, continue holding your banana, Troll, someone is already on the way with a nice cage!