It’s a known fact that while copyright trolls tell those they are suing that they will pursue all of their cases to the bitter end, that isn’t how they behave. Court records show dozens – if not hundreds – of examples where cases were dropped or otherwise terminated.
- But until now, the reasons why this happened have been a closely guarded secret. Then U.S. Federal Judge Milton Shadur of the Northern District of Illinois required Malibu Media, one of the main companies in the U.S. that goes after BitTorrent users for cash settlements, to submit a summary of its activities in Illinois.
As reported by troll watcher SJD at Fight Copyright Trolls, there was an agreement that this court-ordered summary could remain under seal – but it somehow wound up briefly on Pacer, and it provides some interesting insights into what prompted Malibu to drop litigation against individual BitTorrent users.
- The summary disclosed that Malibu Media filed cases in Illinois against 886 defendants. According to the company, just 174 had paid up at the time the summary was submitted to Judge Shadur, with 150 of those hiring a lawyer to do so.
Another 100 cases were still open (including 42 still at discovery stage and 30 in negotiations). A total of 612 defendants paid nothing at all and the cases against them were dismissed. The reasons the company cited for dismissing are more than a little surprising — and they offer hope and strategies to individuals who find themselves targeted by a copyright troll.
Here are the surprising reasons the copyright troll backed down:
- Users passed a lie-detector test. One of the surprise twists was that Internet account holders who passed a lie detector test were left alone by the copyright troll – and that’s great news for parents or grandparents who can honestly say that they had no clue that a child was using their Internet connection to download movies illegally, or for anyone whose unsecured Wi-Fi connection fell victim to an unauthorized user. (That is, of course, if it’s Malibu that comes after them – and if the company continues its policy now that it’s been leaked.)
- The user demonstrated “real hardship”. “Hardship is when a defendant may be liable for the conduct, but has extenuating circumstances where Plaintiff does not wish to proceed against him or her,” the Malibu document explains. “Examples are when a defendant has little or no assets, defendant has serious illness or has recently deceased, defendant is currently active duty US military, defendant is a charitable organization or school, etc.” Out of 886 defendants, Malibu reports that cases against 49 were dropped on hardship grounds.
- There was insufficient evidence. It has long been said that an IP address alone isn’t enough to identify an infringer and Malibu’s own submission to the court shows this. “Insufficient evidence is defined as when Plaintiff’s evidence does not raise a strong presumption that the defendant is the infringer or some other ambiguity causes Malibu to question the Defendant’s innocence,” the company writes. So, in an attempt to boost the value of the IP address evidence, Malibu says it investigates further to determine whether the account holder is in fact the infringer. The company says it looks in three areas.
- Length of the infringement, and times of the infringement. This is the first time to my knowledge that any copyright troll has admitted considering how long there was a pattern of infringement, and whether or not there was a pattern to the downloads that might show the defendant was telling the truth. For instance, a neighbor of mine was sued by a different copyright troll for downloads that took place between 3 and 6 p.m. – when she was still at work. The company that sued her didn’t believe her assertion, and she paid a settlement fee. But, if this summary is accurate, the outcome might have been different if Malibu had looked at the same circumstances, because it might have believed her assertion that someone was accessing her Internet connection without her permission – her house backs up onto a junior high school sports field, which is populated with several hundred bored 13-15 year olds during the after-school hours.
- Location of the residence where the infringement occurred. Malibu said that if there were other dwellings within wireless access range, it was more likely to drop the infringement than when the dwelling was in a remote location. That’s good for some, not for others. Recently, my grandson performed in a live theater performance in the small town of Peaster, Texas. A ranch near the site of the outdoor drama had an unsecured Wi-Fi connection – probably on the belief that the cattle and horses wouldn’t bother stealing Wi-Fi and there wasn’t anyone close enough to do harm. But for the 5 days of the performance, thousands of people came through the area – and I am certain that I am not the only person who used the Wi-Fi to get a connection when they couldn’t get a cell phone connection. (I checked email, posted photos to Facebook, and read the news – I did NOT violate anyone’s copyrights.)
- Social media profiling of suspected pirates, and other copyright infringement from the same IP address. I found this one of particular interest. Malibu said that since July 2012 it has been monitoring not just its own content online, but also piracy on music, movies, eBooks and software. It compares the IP addresses it spots downloading other pirate content with the IP addresses known to be infringing copyright on its own titles. Then it compares the data it collects with social media postings made from the same IP address to profile the suspected pirate. “Oftentimes, a subscriber will publicly admit on social media to enjoying sports teams, music groups, or favorite TV shows. Malibu will compare their likes and interests to their [downloads of other content] and determine whether the interests match,” the company explains.
Other Circumstances for Dismissal
The documents filed in the Northern Illinois case also included these other circumstances in which Malibu said that it might dismiss a case on evidence grounds.
- Multiple roommates within one residence with similar profiles and interests share a single Internet connection
- The defendant has left the country and cannot be located
- The results of additional surveillance do not specifically match profile interests or occupation of defendant or other authorized users of the Internet connection
- The subscriber is a small business with public Wi-Fi access, etc.
From a total of 886 defendants, the summary said that cases against 259 were dropped due to insufficiennnnt evidence.
The Polygraph Defense
Although evidence from a polygraph machine is not generally acceptable in court, Malibu says that it will accept the results of a lie detector test in the absence of any other supporting evidence. , “Malibu will dismiss its claims against any Defendant who agrees to and passes a polygraph administered by a licensed examiner of the Defendant’s choosing,” the company told the court, adding, “Out of the entirety of polygraphs administered within the United States by Malibu, no Defendant has passed and all such examinations have subsequently led to the Defendant settling the case,” Malibu writes.
However, I would personally think that a polygraph might be a good option for targets who can honestly say that they did not know they had an unsecured Wi-Fi connection, or that they did not download the alleged content. That should be useful to people who have less-than-honest friends or house guests, or even grandparents whose grandchildren misuse an Internet connection without the adult’s knowledge.
One Prosecution Barrier: Discovery
One barrier to prosecuting alleged copyright infringers, Malibu says, is not being able to access “discovery” information from ISPs. After all, in order for Malibu to pressure people into settling, it must first find out who they are from their Internet provider. And, although Internet providers are required by law to turn over account information when ordered to do so by a court, Malibu’s submission to Judge Shadur reveals that they don’t always get the information they request.
Here are the reasons for “failed discovery” that resulted in cases against 304 individuals being dropped out of the 886 filed in Illinois:
- ISPs not retaining logging data for a long enough period
- Subpoenas being quashed due to cases being severed
- Information held on file at ISPs does not match identities of an address’s occupants
- ISP could not match the IP address with a subscriber at the time and date stipulated by Malibu
Takeaways for BitTorrent Users
In total, 174 cases were settled by defendants without need for a trial but the amounts paid are not included in the document. However, the submission does reveal that two cases did go to court resulting in statutory damages awards of $26,250 and $15,000 respectively.
Other court filings have shown that the median amount paid by an individual in a BitTorrent copyright infringement case filed in the U.S. is $3,400.
The summary may ensure that even fewer people are prompted to pay up in the future, since Malibu’s submission clearly shows that the vast majority of their cases get dismissed for one reason or another and a significant proportion simply do not pay up.
More importantly, it suggests that Malibu is working under the assumption that an IP address alone isn’t enough to secure a settlement and that additional social media-sourced evidence is required to back it up. So the first rule of BitTorrent use may be: Don’t talk about BitTorrent use.
Of course, as a copyright holder, I definitely think that not infringing on other people’s copyright is an even better idea. But the victimization of individuals who use services like BitTorrent by copyright trolls who may not even be the original creator of the copyrighted work, but are often law firms or companies that have purchased the right to sue in exchange for sharing the revenue from the lawsuits with the copyright holder, is just as wrong.