Tuesday, February 26, 2013

Enraged by abusive lawsuits, anonymous troll slayers fight back

Growing community of online activists is making life difficult for porn trolls.

When a couple (we'll call them the Smiths) received a letter from their ISP—one saying they were being threatened with a copyright lawsuit—they were scared. The middle-aged immigrant couple moved to the United States from Eastern Europe more than a decade ago. Both have advanced degrees, but they knew very little about the US legal system. They denied (and still do deny) the plaintiff's accusation that they downloaded a pornographic film on BitTorrent, but the Smiths were still worried about the consequences of being sued.
"We never were involved in the legal process," Mr. Smith told us in a phone interview. "I didn't know the difference between criminal cases and civil cases. I was totally ignorant."
The Smiths' predicament has become increasingly common. So-called "copyright trolls"—often law firms representing third-tier pornography producers—have threatened tens of thousands of users with lawsuits for allegedly sharing copyrighted pornography on peer-to-peer networks. A key part of the troll business model is that the cost and embarrassment of a public lawsuit involving pornography can be enough to intimidate even some innocent users into paying the trolls' ransom.
The Smiths decided that hiring a lawyer would be too expensive. So, after some online research, they drafted a motion to dismiss the lawsuit themselves. The judge didn't grant the Smiths' motion, but the plaintiff only pursued a handful of the "John Doe" defendants in the Smiths' case. After a few months of anxious waiting, the Smiths concluded that their adversary had moved on to other targets.
Now out of danger, the Smiths wanted to share what they learned with others facing the same threat, so they established a blog called Fight Copyright Trolls in May 2011. Nearly two years later, the blog has emerged as the nerve center of a growing community of anti-troll activists. And SophisticatedJaneDoe, the couple's shared online persona, has become a de facto leader of the Internet's grassroots anti-troll movement.
The emergence of sites with names like Fight Copyright Trolls and DieTrollDie is creating headaches for the porn trolls. The trolls' threats often rest on shaky legal foundations, but they've been able to intimidate many victims into paying up anyway. Anti-troll sites closely monitor ongoing troll lawsuits, publicize troll misconduct, and offer their fellow John Does advice on fighting back. By providing victims with accurate information and moral support, anti-troll sites make it much harder for trolls to intimidate them. And by documenting trolls' misconduct, they provide defense attorneys with ammunition to discredit the trolls in the eyes of judges.
“It’ll freak her out so badly that it might put her off eating.”
In recent weeks, Ars has talked to several important figures in the anti-troll community. For many of them, like the Smiths, the issue is personal. Copyright law wasn't even on their radar until they got a letter from their ISP about a copyright lawsuit. Some victims found the experience so infuriating that they emerged determined to help others facing the same threat.

Does helping Does

"My elder mother (68-years-old) just received the letter from her ISP. She asked me to look it over and tell her what it was all about," reads one comment posted to Fight Copyright Trolls in September. "Can’t really afford a lawyer but I don’t want my mother being harassed and I’m afraid if they get her info she’ll fold and pay the ransom, I mean settlement, which she can hardly afford."
Within half an hour, another reader named Raul weighed in with helpful information. He provided a link to a free copy of the docket for the case, allowing the original commenter to read past filings. And he suggested a lawyer who may be able to represent the commenter's mother pro bono.
"I still haven’t told her the real situation, it’ll freak her out so badly that it might put her off eating," the reader wrote. "I’m hoping to get a plan together this/next week after some more reading."
Raul pointed out that under the discovery rules established by the judge, the troll would only be allowed to get the woman's mailing address, not her phone number.
"W/no phone #s released I may just try to have my mother ride this out," the commenter responded. "Thanks again!"
This kind of interaction is a regular occurrence at Fight Copyright Trolls. Every day, new users get threatening letters and show up on the site looking for help. Others with more knowledge and experience fighting trolls offer information, advice, and encouragement. Some of the people who get help on the site become site regulars and help other users in turn.
"I was glad that the community formed," Mr. Smith said. "I'm glad they started helping because I definitely have no time. I have a full-time job. It would be a nightmare if I had to answer every question of the thousands and thousands of newcomers. I was happy that people started doing what I hoped they would do: answer questions to help each other."
Still, Mr. Smith (who recently has been more active on the site than his wife) spends a couple hours a day working on helping troll victims and exposing troll misconduct. He writes posts, responds to comments and e-mails, and keeps up with the latest news on Twitter.

The retired lawyer

Raul, a 40-something man who lives on the East Coast, became involved in anti-troll activism after he received a threatening letter of his own. "Raul" is a pseudonym. Like the Smiths and many other anti-troll activists, he is concerned about retaliation from the trolls if his real name became public.
"I'm not a techie guy," Raul told us in a phone interview. "I wasn't aware of BitTorrent until this whole thing happened." He says he didn't download the pornographic movie his troll accused him of downloading. But he holds a number of leadership roles in his community—at church, in local charities, and on municipal boards. Even an allegation of illicit porn downloading could be embarrassing for him and his family.
The porn trolling business model is “ten levels below ambulance chasing.”
Fortunately, Raul is a retired lawyer, so he knew exactly how to respond to the trolls' threats. He filed a motion to quash the subpoena seeking his identity. He says the court never ruled on his motion, but the trolls—perhaps fearing a fair fight—have opted for easier targets.
"They never got my personal information," Raul said. "I was never targeted or harassed by anyone." But he has closely followed filings in the case, and based on those filings he estimates around 30 percent of his fellow defendants did wind up writing the trolls checks.
Raul soon became a regular commenter on Fight Copyright Trolls. Before long, the Smiths recognized the value of Raul's legal expertise and invited him to contribute guest posts. He believes his experience practicing law gives him an edge in tracking the trolls and their legal tactics.
"I navigate the legal system better than someone who didn't have a legal background," he said. "I also know people in the court system who could help me out if I needed it."
In Raul's view, the porn trolling business model is "ten levels below ambulance chasing. It's horrendous. Most attorneys don't engage in this kind of obvious game-playing and extortion."
But Raul told us it was important for people who are targeted by trolls to understand that their bark is often worse than their bite. Typically, trolls will send threatening letters to thousands of people but only file a handful of lawsuits. By examining the track record of the specific trolls that are threatening them, Raul said, victims can get a more accurate sense for their risk of being sued. Some trolls, he said, sue as few as one percent of the Does they threaten.

“I will fight this at every turn”

To fight back effectively, Does need information. Some information is available on the anti-troll sites. Raul recommends searching sites like RFS Express to get information about other lawsuits filed by a particular troll. Those can provide insight into the troll's tactics. Raul also recommends that Does get an account on PACER, the courts' paywalled website for access to court filings, so they can see all the documents in their own case. (Shameless plug: the RECAP Firefox extension helps to reduce your PACER bill.)
Indeed, scouring PACER dockets has become a kind of hobby for troll slayers like Raul, who racks up a $50 PACER bill in a typical month monitoring troll cases (PACER charges $0.10 a page). Many troll victims write letters to the courts denying the trolls' accusations and describing the hardship that litigation would pose. The confusion and anguish evident in many of these letters are a key motivation for troll-fighters.
For example, Raul pointed us to a letter submitted to the court by Jason Garrett, a truck driver with an annual salary of $32,000. "I wasn't even home at that time," he wrote, describing how he was driving his truck at the time of the alleged infringement. "I will fight this at every turn. I don't have a lawyer and I have no money to hire one. I just have faith in our legal system and know that I have truth on my side."
"If I have to I will of course come to court to defend myself," Garrett continued. "I have no assets, no money, and to take time off from work could jeopardize my job and my family. I have no paid days left. I have heart disease and have had a heart attack so I have used all my paid days for medical reasons. I am sickened that I am being sued for something I know nothing about and something I am completely innocent of."
"If I was better organized, I would compile a couple of dozens of similar letters," Fight Copyright Trolls tweeted about Garrett's letter. "Copyright trolls have no souls."

The Doe defender

One of the most common topics of discussion among Fight Copyright Trolls readers is identifying a good attorney. And one commonly cited name is California attorney Morgan Pietz.
Morgan Pietz.
He's the lawyer who tipped off Judge Otis Wright to a Minnesota man's allegations that trolling firm Prenda Law had fraudulently named him the CEO of two of its shell corporations without his consent—charges that could lead to fines or even jail time for one Prenda attorney.
Pietz told Ars that he looks at sites like Fight Copyright Trolls to help him keep up with legal developments around the country. "There's a lot of good information on there," he told us. "I think it's great that somebody's paying attention to these cases, that these websites have developed to facilitate that."
He also praised the sites for "creating a way for people who are unrepresented to share information" about troll cases, though he cautioned that information provided online should always be taken with a grain of salt.
Pietz himself offers troll defendants advice on his website.
"Litigation is very difficult and expensive," Pietz writes. "What the troll really wants are any easy settlements that can be obtained without having to do the work of actually serving a lawsuit and then litigating it in court." This means that there's a good chance that if you simply ignore threatening letters from a troll, he will eventually give up and leave you alone.
Like other troll critics, Pietz discourages Does from giving trolls money. He acknowledges that a minority of Does may have no choice. However, he writes, "in my experience, a good reason to pay the troll is exceedingly rare. And you should also understand that it is solely this category of defendant, who feeds the troll, that makes these lawsuits profitable such that the trolls keep filing them."


Another popular anti-troll blog is the unsubtly named DieTrollDie. It was also started after its author, an Internet security professional and self-described beer geek, got a letter from his ISP warning him of a copyright lawsuit. "I said, 'I didn't do this,'" DieTrollDie's proprietor told us in a phone interview. "There's no proof of this. I blew it off. Probably shouldn't have. I ignored it."
A few months later, he got a letter directly from the troll, threatening a lawsuit if a four-figure settlement wasn't forthcoming. When he refused to pay up, the harassment escalated to phone calls. But no lawsuit was ever filed.
As judges have wised up to the porn-trolling business model and set precedents unfavorable to their tactics, the trolls have been forced to repeatedly adjust their legal tactics. For example, last year, some trolls tried to exploit an obscure provision of Florida law called the "pure bill of discovery" to circumvent the normal limits on subpoenaing victims' contact information. Spotting and publicizing these shifting tactics and discussing ways to counteract them is a major focus of DieTrollDie.
The proprietor of DieTrollDie is a self-described beer geek.
"When they did my case, it was really early on in [the porn trolls'] development, so it was a really poorly done lawsuit," the anti-troll activist said. "It was really sloppy. I could look at it now and say, 'Oh boy, there are holes in this.'"
Today, many trolls are more sophisticated. But thanks to anti-troll blogs, so are many of their adversaries.
Indeed, DieTrollDie's author has even been known to directly involve himself in litigation. In one case, Prenda Law accused Pietz of grandstanding in order to get attention from anti-troll blogs, mentioning DieTrollDie by name. And DieTrollDie took that as an opportunity to file a declaration with the court, something he has done in several other cases as well.
He filed the declaration anonymously, stating that "if I were to file this declaration under true name, I feel I would be singled out for vindictive prosecution by my Plaintiff and the network of copyright infringement lawyers that file these types of cases."
The DieTrollDie author then described several examples of what he regarded as unethical conduct by Prenda Law. "I hope my declaration will aid the Court in understanding the questionable practices of Plaintiff," he wrote.
Anti-troll activists seem to be slowly gaining the upper hand. By arming victims with accurate information, they're helping to reduce the number of victims who write the trolls checks. And by publicizing the misconduct of the most disreputable firms, they're providing defense attorneys like Pietz with ammunition they can use to discredit the trolls in the eyes of judges.
The author of DieTrollDie says that once he realized how rare it was for trolls to actually pursue lawsuits against their victims, he stopped being scared of them. But more recently he's started to worry that his anti-troll activism would cause him to be singled out for retribution.
"We've really become a thorn in their side," he told us. While he's confident the law is on his side, he says it wouldn't surprise him if the trolls played dirty. "If they could find out who I was, I could see them making stuff up."

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