Below is a comment to one of my recent posts, “Eighth Amendment and copyright trolls”. This comment is very thoughtful and deserves to be a separate post.

Thank you for your post. It got me to do some reading on this subject and I agree with you on how the Trolls are abusing the law for financial gains. This law was not designed to go against the “little people,” only those businesses who infringe on copyright holders. For all who read this, please note I’m not a lawyer. Note: I do have a criminal justice degree and have previously worked with and alongside lawyers on various issues. Please take everything I say with some doubt and find out for yourself.

Even with my background, my first reading of my Troll letter was scary. I wasn’t scared because I did anything wrong, I just have seen innocent people can get screwed over by the system — it isn’t perfect. Then combine that with a lessened burden of proof requirement for civil cases and the nature of the Trolls – your stomach starts to turn. No wonder paying out $2-3K sounds like a bargain to some people!

You are right in calling it a weapon of mass fear. Even though the letter does basically break down the maximum statutory penalties of $30K and $150K, plus attorney fees; it certainly doesn’t tell the scam recipients that the minimum fine could be as little as $750.00 or $200.00. Must have slipped their mind… Oh, the Troll also forgot to mention this fine could be applied to a group of infringers and not to each one (for a single work).

The key point of the letter is to tell YOU the following: YOU did it. There is NO excuse for YOU doing this. PAY UP or YOU will be sorry. PAY it now and make it FAST. Also fine print… YOU CAN NOT tell anyone about the settlement (Hides Troll activity — Trolls don’t like the light.)
Everyone — time to get a little smarter on the law. Again I’m no lawyer, but just think on the following subject matter. If I don’t grasp the complexity of the law or misunderstand a point, please tell me and everyone who reads this.

US Code Title 17, Chapter 5 (Copyright Infringement and Remedies). This is the remedy section the Trolls are focusing on. The other remedy option is called “Actual Damages and Costs.”

Title 17 USC, Chapter 5

(c) Statutory Damages. —

(1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.”

Now if we are talking “Willful” infringement, the court can award statutory damages up to $150K. But please note for this, the copyright owner has the burden of proof that the infringement occurred and the accused did it. Again, IP address does not equal the offender without proof. Then THE COURT makes the determination if it was “Willful.” Willful means the accused did it will the full intent and knowledge that the action was wrong. If the court finds the accused was not aware of the activity (or truly thought that it wasn’t infringement – determined by the judge), the fine could be reduced to no less than $200.00.

Now this may sound like if you didn’t know the activity was going on, you can still be liable. Wait a bit. Remember this is the penalty phase, not the decision phase. The jury has to first determine guilt or innocence.

I sometime have serious doubts of how a jury will act, but most juries will not convict a person for activity they did not do OR had no knowledge of it occurring under their jurisdiction (your network) — regardless of how the law was written. As most jury members do not know how manager their own home computer networks (beyond setting it up in the beginning), I believe It would be hard for a jury to convict someone (like them) for what an unauthorized person did on their network without their knowledge.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

To “Join” or “Not to Join”

Here is an interesting idea to kick around. If a Troll eventually goes after and wins one against a single person in court , I would suggest that the fine as described in “(c) Statutory Damages,” (see above) should be applied to all the does that were listed in the initial case. Even if the troll only uses the initial mass John Doe case to gain ISP subscriber information (then drops the case to file singularly), they have already provided sworn/affirmed statements to their belief that the cases are joined – due to everyone sharing the file in question via a torrent system. Now no court is going to fine anyone that hasn’t been convicted (the Does that didn’t settle and were not listed as defendants), but it does show the court that the Trolls are not acting in good faith when they file these mass John Doe suits. They are abusing the court to go on these “Fishing Trips,” to obtain your name/address from the ISPs. They then send out the settlement letters and start working the telephones to further scary people into paying.

I think this would also give anyone convicted of this a good issue to raise on appeal. Remember the fine is “an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally,”

Joint and severally liable (More legal mumbo Jumbo) —

Here is some interesting bit on the “for which any two or more infringers are liable jointly and severally,” portion.

Taken from the Cornell University Law School Web Page

When two or more parties are jointly and severally liable for a tortious act, each party is independently liable for the full extent of the injuries stemming from the tortious act. Thus, if a plaintiff wins a money judgment against the parties collectively, the plaintiff may collect the full value of the judgment from any one of them. That party may then seek contribution from the other wrong-doers.

For example suppose that A, B, and C negligently injure V. V successfully sues A, B, and C, for $1,000,000. If the court used a joint and several liability system, V could demand that A pay V the full $1,000,000. A could them demand contribution from B and C. However, if B or C could not pay, A would be stuck paying the full $1,000,000.

Now since the Trolls have been claiming all of the John Does are joined (All shared a specific file via a torrent), wouldn’t that mean the fine should be a joint one???? I don’t think the trolls want that, as majority of the Does probably don’t have the money to pay any large scale fine, or the ability to go after the other does to make it up the difference.

I don’t know of anyone using this agreement against the Troll’s behavior, but I hope my words start some thinking on the matter.

Last Point —

Much of what I have brought up is only valid if the PERSON (not necessarily the IP owner) is found guilty of the act. Last bit of advice to those who are just finding out about this the hard way – Don’t feed the Trolls. It only keeps them going. I haven’t fed them and my life hasn’t gone to hell. Please note that the Trolls are big and probably would mind trying to make an example of someone going against them. Take precautions and protect yourself and get the word out to all your friends and associates. They could be next.

John Doe