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Copyright Trolling in the Northern District of Illinois

What to Know Before You Communicate with Attorney Michael Hierl or
Retain a Chicago-Area "Troll Defense" Attorney.

CopyrightHave you received a letter from Comcast referencing a federal lawsuit, and suggesting that "you have been identified … in this lawsuit for allegedly infringing…"

Or, have you received a letter from Attorney Michael A. Hierl, suggesting that his firm represents a client threatening you with being named as a party in pending federal litigation.

Consider this:

The internet offers us incredible access to all types of content. Unfortunately many of us don't educate ourselves about where that content comes from. Others educate themselves and make a conscience and calculated decision to obtain content through improper means. While file sharing programs like BitTorrent have plenty of perfectly legitimate functions, copyright trolls rely on the assumption that anyone using those programs is sharing content, primarily movies, illegally. Torrents are peer-to-peer networks that share and compile bits of movies, television shows, etc. into watchable content. Many content providers use file sharing! When you download or watch content using BitTorrent or other file sharing formats, "technical consultants," on behalf of copyright trolls, may be able to record an infinitesimal snapshot of that activity.

Important Note! If you are viewing movies or other content through any unpaid method, remember the old adage: "If it seems to good to be true, it probably is to good to be true." In an age where everything is monetized, "free" internet content, especially movies and music, should be viewed with a healthy amount of suspicion.

What Is a Copyright Troll?

At the time the complaint is initially filed, the snapshot described above is probably the only evidence the plaintiff has to suggest that there has been a violation of the law. Despite the obvious weakness of that evidence, the troll lawyer will file a complaint on behalf of the troll plaintiff suggesting copyright infringement against 15 – 30 "Does," and then file a motion for early discovery requesting the identity of the IP addresses that snapshot has "caught." Sadly, most courts rubber stamp these motions without evaluation of the form declarations used to support them.

For an excellent analysis of the multitude of problems these form declarations present, see this story.

Copyright TrollHierl's Demand Letter

If Comcast discloses your information to Attorney Hierl, you will receive a form demand letter a few weeks later. Hierl's form letters are exaggeration at best and outright lies at worst. His letter states that "your contact information was supplied to us by your ISP as one of the Defendants who has illegally obtained or shared our client's copyrighted motion picture through a peer-to-peer network." This is simply not true. Hierl's client has requested the identity of an ISP through subpoena. The ISP has provided Hierl with nothing more than the name and billing address associated with the IP address that Hierl gave the ISP, not any evidence of wrongdoing.

Hierl's letter goes on to say that, "according to our records, you have placed a media file which contains the copyright-protected film content of our client's motion picture [name of movie here] in a shared folder location on your computer." My experts and I do not believe this is possible. All Hierl and his client appear to have is that infinitesimal snapshot that won't even be identifiable as part of the copyrighted material in question. That is a far cry from the "media file" he wants you to believe he has.

Hierl's letters also contain the audacious claim that settlement at $3900 pre-litigation is "extremely reasonable" and cites Sony BMG Music Entertainment v. Tenenbaum – a 10-year old non-troll case from another jurisdiction. I am not aware of a single troll case taken to trial in this jurisdiction, and I have no reason to believe a troll plaintiff could obtain anything close to the six-figure judgment threatened in Hierl's correspondence for infringement of a single film. Note that actual damages for these sorts of claims are the $2.00 - $20.00 you would pay for a DVD rental, movie ticket or DVD purchase.

What to Do Next ...

Hierl's letter strongly encourages you to "consult with an attorney to review your rights and risk exposure," but I am concerned that the troll scam is perpetuated by the number of lawyers calling themselves "troll defense experts" who aren't defending anything other than their own practice niche. Every lawyer should be providing you with the facts about these cases so that you can make an educated decision about how you wish to proceed. The troll model can only be perpetuated if demands are met and cases are not litigated on the merits … which is why troll "defense" attorneys aren't disclosing what I'm disclosing here.

I no longer negotiate with Hierl or his troll clients and I have never advised a client to pay a dime to a troll, ever. I believe our system of justice should force a plaintiff to prove cases with actual evidence rather than rely on pre-litigation threats and bullying. My work in this area of law has one goal, and one goal only:

SHUT DOWN THE TROLL MODEL.

Want to Fight Back?

If you are seeking representation to defend a troll case, and do not wish to settle, please contact my office at (312) 753-5302.

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