HYPOTHETICAL COPYRIGHT TROLL SHORT STORY
“The Start of a Nightmare“
Diane looked at the envelope from John Slick, Attorney-at-Law in Las Vegas, addressed to her husband Ed as she opened the door to their ranch-style home in Upstate New York. She noticed the door to Ed’s workroom was open.
“I see you didn’t have a chance to check the mailbox, “ she announced to Ed who was carving a wooden horse for his grandson’s birthday.
“No, forgot. I want to get this horse done for Sean.”
“How’s it coming?” Diane said, and walked into the workroom to take a look for herself. “Ahh, Ed, that’s lovely. Our six-year-old little guy’s going to love that. And Sammy and Kristen are going to love you even more for doing this for Sean.”
Ed smiled from ear-to-ear.
“Oh, you have a letter here from a Las Vegas, lawyer,” Diane said, and put it out in front of Ed’s nose.
“Huh,” Ed said, and showed Diane his hands. “Las Vegas? Open it, honey, my hands are full of shellac.”
Diane opened the letter.
“What the hell is this?” Diane said with a gasp.
“What is it,” Ed said, and stopped working on the carving. “What’s it say?”
Diane started to read a few sentences. “It’s from a federal court…it says alleged infringement…peer-to-peer network…BitTorrent…according to our records you have placed a media file which contains the copyright –protected film content for our client’s motion picture…”
“What the hell is BitTorrent?” Ed said. “What movie? What’s the name of the movie?”
“It’s called, Deep Tonsils. Oh, my God, Ed. It says…it says they can seek damages of up $150,000. per infringement.”
“What!” Ed said. “Deep Tonsils. I think that’s a porn movie.”
“Oh, my God, Ed, but it says we can pay $3,900. And if we don’t pay it right away in another week it goes up to $4,900.
“They’ve got the wrong people.”
“Ed, it says they got our home address through our internet service provider. That if we don’t pay we’ll be named in a lawsuit.”
Diane and Ed looked at each other in silence.
“Could one of the kids have done this,” Diane said.
“Oh, God, is that possible?” Ed said, shaking his head. “We’ve got four kids and eight grandkids, all of which are in their teens and older.”
“Except for Sean,” Diane said.
“Yeah, Right,” Ed said, still in a daze.
“How would we begin to find out if one of them did this?” Diane said.
Ed shook his head. “Maybe it wasn’t one of the kids. Remember we had those carpet guys around last month. We always leave the computer on in the office and forget to log out.”
“We have to pay, Ed. We can’t be named in a lawsuit. A pornography law suit…my God this is terrible.”
Ed shook his head again. “I don’t believe this.”
COPYRIGHT TROLL NEWS ARTICLE
A couple of weeks ago I came across an article published in TorrentFreak titled, “Retired Police Officer Wants $48,773. from Copyright Troll.”
The article presented the case of a retired police officer that was accused by a porn media company of downloading and sharing their content 87 times through a file-sharing site called BitTorrent. The retired police officer (in his mid-70s) did not take this accusation lying down and decided to fight back. He retained an IP attorney and made a counterclaim.
DID THE PORN MEDIA SITE CONNECT THE ALLEGED INFRINGER WITH AN ACTUAL INFRINGEMENT? SUPPOSEDLY NOT.
According to the TorrentFreak article, “The man [retired police officer] accused the rights holder [through his attorney] of going on a “fishing expedition,” while knowing that it couldn’t link the subscriber of the IP-address to any specific infringement.’ ”
“The defendant submitted a counterclaim…abuse of process and “extortion through sham litigation.”
WHY IS THAT?
According to the TorrentFreak article, “Every year so-called copyright trolls sue thousands of BitTorrent users in the US. While most cases don’t make the news, every now and then one stands out.”
WHAT IS A COPYRIGHT TROLL?
In this context, “copyright trolls” are media companies (usually porn sites) who demand payment from persons who allegedly infringed on their content by sharing it through a torrent site. The alleged infringers are accused of being connected to the infringement through an IP address.
WHAT IS BIT TORRENT?
According to Wikipedia, Bit Torrent is, “…BitTorrent (abbreviated to BT) is a communication protocol for peer-to-peer file sharing (P2P) which is used to distribute data and electronic files over the Internet.
“BitTorrent is one of the most common protocols for transferring large files, such as digital video, files containing TV shows or video files containing TV shows or video clips or digital files containing songs.”
WHAT IS THE DIFFERENCE WITH WHAT THE PORN SITES DO TO PROTECT THEIR COPYRIGHT AND MAINSTREAM MEDIA SITES?
According to a 90 page, 2018 Iowa Law Review article written by Matthew Sag and Jake Haskell titled, “Defense Against the Dark Arts of Copyright Trolling”:
“The RIAA [Recording Industry Association of America] and its members are not copyright trolls because the industry’s end-user litigation strategy was focused on deterrence. It was designed to channel potential infringers back into the legitimate market, not as a way to monetize infringement as an end in itself….This difference of motivations is important.”
SOFTWARE USED BY THE PORN SITES
According to the TorrentFreak article, the retired police officer’s attorney said that the software used to detect infringement is not “forensic software.”
According to the Iowa Law Review:
“In the typical case, the plaintiff asserts that it has evidence the defendant participated in something called a BitTorrent swarm, thereby illegally copying the plaintiff’s copyrighted work. BitTorrent…is widely used for illegal file- sharing.
“The plaintiff claims to be able to identify the defendant by his or her IP address. The plaintiff says that it can prove the defendant participated in the swarm and made a copy of the work because the plaintiff’s technology provider has exchanged part of the relevant file with a device associated with the defendant’s IP address.
“The plaintiff’s inability to bridge the divide between an IP address and a specific person is a fundamental weakness…
“IP addresses are not people.
“…the plaintiffs rely on IP addresses and typically provide nothing to link the named defendant—the subscriber to the Internet account—to the act of infringement.”
HOW’S THIS POSSIBLE?
Here are few other quotes for the Iowa Law Review article:
“Over the past six years, a small group of copyright owners has deluged the federal court system with lawsuits against John Doe defendants alleging online copyright infringement. These lawsuits are sometimes directed against a single defendant, sometimes thousands.
“This new wave of file-sharing lawsuits is, in our view, copyright trolling because of the opportunistic way in which they seek to monetize assertions of infringement. More importantly, we regard these suits as a kind of trolling because the plaintiffs’ claims of infringement rely on poorly substantiated form pleadings and are targeted indiscriminately at noninfringers as well as infringers.
“Plaintiffs have realized that there is no need to invest in a case that could actually be proven in court or in forensic systems that reliably identify infringement without a large ratio of false positives.
“The lawsuits described in this Article are filed primarily to generate a list of targets for collection and are unlikely to withstand the scrutiny of contested litigation.
“Sometimes the plaintiffs get lucky and target an actual infringer who is motivated to settle. Even when the infringement has not occurred or where the infringer has been misidentified, a combination of the threat of statutory damages—up to $150,000 for a single download— tough talk, and technological doublespeak are usually enough to intimidate even innocent defendants into settling.”
COPYRIGHT TROLL STEP-BY-STEP PROCESS
The following steps to the copyright trolls claim process is detailed in the above referenced 2018 Iowa Law Review article:
- Monitor online file-sharing networks and collect evidence of possible infringement. For the time being, it is best to think of this as a “black box” process that produces lists of alleged infringements and associated Internet Protocol (“IP”) addresses.
- File a complaint alleging copyright infringement by John Does identified only by their IP addresses in the appropriate federal district court.
- Seek a court order to compel Internet Service Providers (“ISPs”) to provide individual account holder information matching the IP address.
- Contact account holders by letter and threaten to seek very large awards of statutory damages but offer to settle for amounts ranging from two to eight thousand dollars.
- Settle as many cases as possible, and abandon virtually all the rest.
JASON TUCKER’S COPYRIGHT TROLL ANALYSIS AND CASE STUDY
Jason Tucker posted a very compelling and informative podcast last month titled, “Copyright Trolls – Jason Tucker’s Inside Look at Prenda Law, the most accomplished trolls to go to jail.”
Here are a few excerpts:
“Here’s a non-technical summary of how trolls deploy what I call the torrent user lawsuit model.
“As a troll, you put content on a computer and connect the computer to a torrent site. Then you wait.”
“When people start pulling the file, you’re going to gather all those IP addresses. Those IP addresses are like computers’ phone numbers on the Internet.
“When you have a lot of IP addresses you need to now figure out who they belong to and kind of put a name to a number. So, you take that list you map out the IP is to find out the geographic location copy all the U.S. addresses.
“If you wanted to in the US [put] into a list and that becomes exhibit A for which you should now file a John Doe lawsuit against all of these numbers representing that you’re suing a number of people at once and now you need to find out who they are.
“Then you file a motion with a court asking them to grant what’s called early discovery because in most instances that’s the only way you’re getting information on who these numbers belong to.
“Now the court grants the motion for early discovery. The attorney with subpoena power now sends the list to the respective Internet Service Providers. They, in turn, more often than not send information back. And because most people don’t use VPN, the IP belonging to your Internet Service Provider will result in them identifying who it is. This is their billing information.
“Now the next proper move would be to send a letter saying we’re suing you if you wish to discuss, settle, we’ll accept X by Y. In early discovery, it was designed to help a plaintiff move the early stages of litigation along not be abused.
“The proper thing to do would be to amend the complaint name that person serve the lawsuit and continue to push it through the court system until the parties reach an agreement or it’s tried or not appealed printout abused the shit out of that.
“Litigation is expensive. Even if you got a great deal, it would still cost you at least $5,000 just to start the process.
“So understanding that, in order for a troll model to work, you need a couple of things. You need more people to be settling with you than paying to mount a defense. You also need to be able to get information on those on those users as cheap as possible.
“…they lump thousands of IP addresses into a single filing and then ask the court to grant early discovery. They then sen[d] the subpoenas to AT&T, Charter, and Comcast who gave them the information, under that court order, of who was using an IP address on a particular date and time once they got that information. (Or a troll uses gets that information same thing) they stop movement on the case. All they do is start sending letters, making calls and threats.
“They need you to pay them not fight them. It was a numbers game for them. Like most trolls, they don’t intend on pushing an actual lawsuit forward.”
Visit Jason Tucker’s website, “Battleship Stance” for a list of his services.
COPYRIGHT TROLLS BUSINESS MODEL
A few more quotes from the Iowa Law Review:
“The first reality is that the BitTorrent cases have victimized a substantial number of noninfringers—this seems to be a feature of the plaintiffs’ business model, not a bug.
“The second is that, although it would not be particularly difficult to amass credible and reliable evidence of online infringement over peer-to-peer networks, the plaintiffs do not appear to have done so in the cases we have studied.”
USEFUL Q & A FOR IP ATTORNEYS AND INVESTIGATORS IN DEFENSE OF AN ACCUSED INFRINGER
The following questions are suggested talking points for client intake as presented in the Loyola Law Review article:
The Accused Infringement
Have you seen this film ever in any context?
Were you at home at the time of the alleged infringement?
Did you do it?
Do you have any idea who might have done it?
Who is in your household?
Who has access to your household?
How do you normally watch movies/TV? (e.g., Netflix, cable, Amazon)
How many and what devices do you have?
External hard drives, thumb drives, other plug-in storage
iPhone (can’t run the BitTorrent client)
Other brand of smartphone
Gaming consoles (e.g., PS4, Xbox, etc.)
What is your Internet set-up?
Do you have Wi-Fi?
Does it have a password?
Does it have a guest network?
Knowledge of Computers and BitTorrent
Do you know what BitTorrent is?
Do you use BitTorrent?
Do you use PopcornTime?
Do you know what PopcornTime is?
How proficient with computers are you?
Information to explain to a new client
File sharing is illegal; ignorance of the law is no excuse.
*Plaintiff has to show that you did this, not just that your IP address did this.
Statutory damages and attorneys’ fees.
How copyright trolling works and options to respond.
Fee structure and conditions of representation.
FINAL EXCERPT FROM IOWA LAW REVIEW
“We believe that copyright trolling remains profitable primarily because the sorts of lawyers who would normally defend clients from this kind of victimization do not know enough about the law and the technology involved to put up a good fight.
“Furthermore, the lawyers who do have the right kind of expertise are usually too expensive to make defending these cases worthwhile.
“A handful of public-spirited defense lawyers have bridged this divide and are successfully defending these cases, but it is only when their knowledge and experience becomes widely diffused that these particular copyright trolls will recede into the darkness from whence they came.
“Our purpose in writing this Article is to accelerate that process.”
Coming from a law enforcement background, I must admit I find it a bit nuts that U.S. federal law permits media companies to send out those letters without a plaintiff definitively connecting the shared-file to the infringer. I absolutely recognize a media company’s challenge in protecting their copyrighted content in this age of piracy–and the enforcement effort to keep up with its explosion–but it seems clear that the technology is available for media sites (acting in good faith) to track the truly guilty and hold them accountable.
I can’t help but think about my time in narcotics enforcement. There were certain street corners that were prone to narcotics dealing and buying. Imagine if we just tossed a net over everybody on that corner. More than likely a number of innocent persons would be swept up. That just does not fly.
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