I received an email from my ISP informing me that information about me was subpoenaed in connection to a lawsuit. What is it about?
Welcome to the club of 200,000+ victims of predatory lawsuits, kind of scam but with one difference – scammers, a.k.a. copyright trolls, albeit being unethical, usually don’t break any written laws, so you cannot just report them to authorities, it will not work. They don’t break the Law, they abuse it. To learn more about this extortion scheme, read About.
DO NOT PANIC
What should I do?
You have two options.
- Do nothing. Your case may be dismissed prior to the date ISP is set to reveal your personal details to plaintiff. If the case is not dismissed, and the troll eventually gets your name, you will start receiving threatening letters and phone calls. Keep reading to understand how to deal with these threats.
- Try to fight back. File a motion to quash the subpoena or dismiss multiple Does. An outcome of such a motion is uncertain – it is really depends on the judge, and since it costs virtually nothing to you, it is worth trying. Even if you don’t succeed, your effort is not in vain: judges’ awareness of this scam grows, and if this judge receives many motions like yours, it may alter his initial opinion on the matter. In addition, trolls normally write and file an opposition to every motion; therefore they spend their time. And more of a troll’s time is wasted, less time he has to inflict damage to the society.
I decided to file a motion. Do I need a lawyer?
Hiring a lawyer at this phase has some advantages: judges will more likely listen to a lawyer than to a pro se defendant, but I don’t think you should spend money at this stage: it is uncertain if a troll can get your name at all. Note that there are good templates that you can use for your motion.
What should I write?
Read this post, download the file linked from it, and modify it accordingly. Don’t forget to specify your e-mail address. I recommend creating a disposable e-mail account (aol, yahoo, hushmail, etc.) specifically for this case – the answer to “Should I specify my name or should I file anonymously?” question explains why you should do that.
The mentioned post’s comment section is very active, so if you have a question, don’t hesitate asking it there: there are many people who are willing to help. Also, visit DieTrollDie’s blog – it has more motion templates, articles and discussions.
How do I stay informed about developments in my case and/or similar cases?
If your motion is filed with the court and you specified an email address, all the new documents for your case will be sent to you as soon as they are filed.
Otherwise it’s hard to get details on a particular case unless it’s been involved in a recently interesting and newsworthy decision or you find one of the Does. Best bet is to get a PACER account and then get Firefox and run the RECAP plugin. This extension merges the regular PACER database with the free records archive maintained by RECAP. When you access PACER with the plugin installed it modifies the pages displayed so if the document is already in RECAP’s archive you can view it for free. If the document is not in PACER, when you download it (it costs $0.08/page from PACER – will be $0.10 starting March 2012) the RECAP plugin will automatically upload it to their database so that you and others can view it for free in the future. It sucks that PACER charges, but for these cases the documents are not that big and if you rack up less than $20.00 in a quarter, they’ll actually waive the fees. Chances are if you just need to follow your own case or keep tabs on a couple interesting cases you probably won’t end up having to pay. It’s also a great thing to do for the community as the more people browse PACER with RECAP the more documents become openly available and the more we all learn.
You can also search the RECAP archive for cases and find documents that others have uploaded, however I strongly recommend going the PACER account/RECAP plugin route as I have found that the index for their web search is very out of date relative to what is available when using the plugin.
If you want just to check if a new document is filed in a case, you can use RFCExpress: although their prices for documents are ridiculous (many documents they sell are available for free elsewhere), unlike PACER, they don’t charge for the document listings, just make sure you scroll down to the bottom of the document list and hit the “Request List Update” button.
Is it legal to share court documents I received by email or downloaded trough Pacer?
Absolutely! Court documents are in public domain and can be distributed freely. You can legally upload the documents to a free pdf hosting service, like Scribd, but I suggest using Recap service as detailed in the previous paragraph.
Should I specify my name or should I file anonymously?
Technically you cannot litigate in a court anonymously, but it is up to the judge. Your goal is not to litigate, but to give the judge an opportunity to make an informed decision. Some judges don’t know the real goal of these lawsuits and how impudently trolls are abusing the judicial system to enrich themselves. So your motion can educate judges. Some judges are angry at trolls but don’t have an excuse to dismiss your case, so your motion can be that excuse.
What should I send with my motion, and where should I send this?
You should sign both the motion and the certificate of service. Also, you may want to attach a proposed order (see an example here).
You have to send a copy of the motion to plaintiff’s council – his address is specified on every court document he files. You don’t have to include a copy of a proposed order.
I recommend using priority or other certified mail with delivery confirmation: this way you will be sure that your motion is delivered, and the troll won’t be able to claim that you failed to serve a copy to him.
If you fight anonymously, make sure that you don’t reveal your address. You cannot send a certified mail without a return address via a postal clerk: he will not accept it, and specifying a fake address is not a good idea – you don’t want to break the law and commit a fraud. In this case you should either buy priority mail stamps or use an automated mailing center.
Envelopes of anonymous filings are usually filed with motions, so everyone will know where you will have sent your motion from. If eventually the troll learns your address, it will not be difficult to calculate the addressee. Since trolls want to discourage defendants from fighting, you will possibly receive a “special treatment”, i.e. will be selectively prosecuted, the settlement demand will be increased, etc.
Hence, I recommend asking your friend in another state to re-mail your motion. If you estimate that many defendants live in your state/city, you can drive a couple of counties from your home to mail it. Alternatively you can use a remailing service like this one: it is very cheap.
I received a letter from a lawyer accusing me of copyright infringement and demanding money. Should I pay?
No. Albeit lawful, this is a known scam. By paying you make this scam sustainable, so paying is harmful not only to you, but to society in general. Read the About page and the blog posts for more information.
Plaintiff’s lawyer politely asks questions over a phone or in an e-mail. He sounds friendly and assures me that I have nothing to worry about if I’m innocent. Should I answer his questions?
No. Since the “evidence” against you is very weak, he will try to provoke your self-incriminating statements. Sometimes it is hard to see how your no-nonsense words can be used against you, but those lawyers are professionals in twisted logic, so they attempt to use your statements to increase pressure to settle.
So what should I say/write?
Just hang up / ignore his emails. If for any reason you want to communicate with plaintiff’s lawyer, consult with an attorney first, and not just any attorney, but one with experience in copyright litigation field and have a good reputation.
I was named in a lawsuit and served with the summons and the amended complaint. What should I do?
At this point it is not wise to ignore this matter, so you must reply. You may want to hire a lawyer, it is up to you: a motion from a lawyer weights more than any pro se filing, plus lawyers can notice troll’s procedural errors and the case can be dismissed based on those errors before merits are considered. On the other hand, many judges are more tolerant to mistakes in pro se filings than to lawyers’ errors.
Why can’t I just ignore this matter as I ignored ransom letters?
In civil cases if a defendant fails to answer to the complaint, so called “default judgment” will be issued by a judge. Law is law, no matter how unfair it is, judges are bound by it. They can in theory lessen the amount claimed by plaintiff, but still the resulting fine will be most likely disastrous for you.
Can I just refuse to accept certified mail, so the troll wouldn’t have a proof of delivery?
Although it is technically not illegal to refuse mail, some judges still may treat you as if you received the court documents. In some jurisdictions, even sending a certified letter constitutes a proof of service. So I wouldn’t recommend playing this game.
Can I proceed without a lawyer in this case?
If you don’t want to spend money on legal help, which is understandable, you may try to file an answer to complaint yourself. Fortunately, there is a growing pool of good samples. For example, look at this one.
What happens next?
Based on my observations, you will most likely be dismissed without prejudice eventually. Expect more attempts to push you into settlement and threats of trial, these are largely hollow threats. One exception: if you are wealthy, trolls can dismiss you without prejudice and sue you in your jurisdiction. But if you are wealthy, you will be able to hire a good experienced IP lawyer, and you wouldn’t be reading this FAQ in the first place.
What is the difference between being dismissed with or without prejudice?
If you are dismissed with prejudice, plaintiff cannot sue again based on the same allegations. Otherwise he can file a new lawsuit against you.
You probably saw many notes of dismissal in court documents. When you see a mass dismissal with prejudice shortly after ISP supplied plaintiff with names, it translates into the fact that those people paid ransoms. If someone is randomly dismissed without prejudice, then most likely troll finds it impractical to pursue this particular defendant for variety of reasons, but he wants to be able to keep this person on the hook, just in case, or he is resolved to pursue these defendants individually in proper jurisdictions.
I see some cases when people are sued individually in their home states. I’m afraid that this can happen to me as well, and I will be financially devastated. Isn’t a settlement my best option?
Many bad things can happen to us. Think about it in statistical perspective. You are scared – this is the exact reason why these individual cases were conceived in the first place – to show everyone the intention to sue you no matter what. This is a bluff. The troll will be financially ruined if he chooses to sue everyone individually. Also, most likely he will proceed with an individual suit if he learns that you have some assets he can take from you. Another possible reason is to vindicate for your loud opposition: not surprisingly trolls try to discourage people from fighting back. So if you chose to fight, do it anonymously.