Tuesday, October 9, 2012

Copyright Trolling: Don't Get A Default!

We all talk about these mass bittorrent lawyers like they are stupid. They might be, but they do know how to get some press. Today, Prenda Law secured a "default judgment" against someone named Darryl Lessere in Florida for $153,770.oo (see below). Yes, that's a lot of money. Will AF Holdings ever collect? Almost certainly not. But they do have this shiny new final judgment that they can wave around to try and scare new people.
Copyright Troll Default Judgment for $150,000
That said, should you be scared by this? Actually, yes, a little. A default judgment is no joke. Sure Prenda just got it by serving some youngster with legal process that he likely didn't understand. But they get defaults like this all the time.
You might ask, is this default judgment enforceable? Yes, it is.
Maybe you don't have any money right now. Maybe you're out of work and broke. But if you win the lottery, the first of it goes to pay off that default judgment. In fact, if you ever make any money, they can use that default judgment to take it.
So what to do? Well, for starters, don't get a default judgment!
How do you avoid a default judgment, you ask. I'll tell you: Do anything you want to prevent it. That's pretty much it. Do you have to hire a lawyer? No, but it helps. That said, just don't let the time frame (21 days from service) pass without doing anything. Just do something, even if it's as little as calling the Court clerk and saying "I didn't do this, can I send you a letter explaining?" That alone should be enough to at least avoid a default.
The problem is that if you don't do anything, the bad guys get to ask the Court for pretty much anything they want and you can't say anything about it. That means you end up with a $150,000 default judgment against you that will haunt you for possibly the rest of your life.
I absolutely hate to see these kind of default judgments because they are so easy to avoid. Look, if you get served and you have absolutely no money at all (I mean not a penny), and no idea what to do, CALL ME! I'll at least help you out enough for free to avoid a default judgment like this.
And for what it's worth, I understand that no one wants to hire a lawyer to defend these almost frivolous suits. Lawyers can be expensive. But you can't just ignore a federal lawsuit against you. The threat is real, but easy to avoid.
It's like polio.
EDIT: I added the Service of Process certification below to show that Mr. Lessere wasn't even personally served. Some woman who doesn't even have his same last name was served. Then I checked Zillow for the house, and guess what. Mr. Lessere lives in a $1.6 Million home. Uh oh.

copyright trolls get $153,000 default judgment

Thursday, October 4, 2012

Copyright Trolling: AF Holdings Names Another Doe

It looks like the Copyright Trolls are trying to make good on their threats to start suing individuals who refuse to settle up. Earlier, Daniel G. Ruggiero named Robert Liberatore in a suit filed in the Eastern District of Pennsylvania. Now, Ruggiero has filed another suit, also in Pennsylvania, this time against Edward Huynh.

Update on weaknesses of copyright troll cases
The two complaints are nearly identical, and both make the same claims of "civil conspiracy" and "negligence." As I mentioned before, those claims are frivolous. The details of why are fairly academic, but they are real. Bottom line: State law claims are preempted by federal law, which means the claims of copyright infringement are the only ones that can be brought for that conduct. Trying to use a negligence claim to overcome the weaknesses of its copyright claim is an end run around the substantial hurdles presented by the elements of vicarious copyright liability.

Basically, it's hard to prove vicarious liability for copyright infringement. You can't make it easier by just saying "well maybe you didn't infringe, but you were negligent." It doesn't work that way. If you file a copyright case, then you have to prove a copyright case. Simple as that. There is no such thing as "lesser included offenses" in copyright infringement.

Also, to prove negligence, you have to show that the accused owed some duty of care to the accuser. In other words, if I don't have any reason to protect your stuff, then I'm not negligent if your stuff gets lost or stolen. At least one Court threw out a negligence claim for exactly the reason that the accuser (the troll) couldn't show that the accused (the Doe) had any reason to try and prevent the copyright infringement. Exactly. It's not my job to protect someone's copyrights from someone else.

These negligence-based theories are not new: FightCopyrightTrolls reported on a very similar case (IO Group v. Does 1-244*) about a year ago.

* I should mention that this case is a good example of why it may not be a good idea to completely ignore the trolls as two of the defendants in that case got hit with a $20,000 default judgment (see below) for just ignoring the case.