Welcome to the TorrentLawyer Blog, a Cashman Law Firm, PLLC resource. The purpose of this sticky post is to be simplistic and help you to navigate this site (which has 200+ articles on copyright cases we have worked on since 2010). In short, if you arrived at this site, you are facing one of three paths:
1) COPYRIGHT INFRINGEMENT “JOHN DOE” LAWSUITS
You have been implicated as a “John Doe” defendant in a federal copyright infringement lawsuit (or worse, you have been served as a named defendant in one of these lawsuits).
WHAT TO DO NEXT: Click the “Cases We Are Working On” menu option (above), and select the name of your case and/or movie allegedly downloaded.
To make things easier for you, these are the primary lawsuits we are actively working on:
You received a DMCA notice (“Digital Millennium Copyright Act”) accusing you of downloading one or more copyrighted videos or music songs, and they have demanded a settlement claiming that if you do not pay, they will sue you for copyright infringement.
WHAT TO DO NEXT: Click on the “Cases We Are Working On” menu option (above) and select which company has sent you the DMCA Notice:
You are lost, or you do not know where to start. Relax, we are here to help you understand what it is you received from your ISP or in the mail, who sent it, and what is happening to you. Once you have an idea of exactly what is happening, we can then discuss how to respond.
WHAT TO DO NEXT: Fill out the Contact form to the right, or e-mail us, text us your question, or simply schedule a time for us to call you. > > > >
STEP 2: BOOK A PHONE CONSULTATION WITH AN ATTORNEY
Bryan N DeMatteo is the New York attorney sending settlement demand letters to accused John Doe Defendants in the New York ME2 Productions, Inc. bittorrent lawsuits (a.k.a. the New York Mechanic: Resurrection movie lawsuits). These settlement letters from the ME2 Production attorney are asking for a settlement of $5,600, which in my opinion is absurd.
As a NY Licensed Attorney for 10 Years, I am competent to speak about Bryan DeMatteo’s lawsuits because I was representing bittorrent clients in 2012 when the case law was first paved.
Let me be clear about this. I am competent to speak about the New York lawsuits because I have been licensed as a New York Attorney for the last 10 years. I also have history here, because I was representing clients in the Digital Sin, Inc. lawsuits of 2012 when all of the good case law was created.
This good case law slowly destroyed every time an innocent defendant listens to a “settlement factory” attorney (usually out-of-state) who convinces them to settle, even though they didn’t do it. Every voluntary dismissal on paper from an innocent defendant who settled gives Bryan DeMatteo’s cases credibility in the eyes of the judges because it makes judges believe that he has correctly sued the “right” defendant.
SIDE NOTE: I am aware that some attorney has called me a “Western out of state defense attorney,” but don’t be fooled — I am born and raised in New York, and New York was the first state in which I first became a licensed attorney. New York is known to be one of the hardest state bars to pass. Let me speak clearly just so there is no confusion — I AM AN ATTORNEY LICENSED TO PRACTICE LAW IN THE STATE OF NEW YORK, AND TEN YEARS LATER, STILL IN GOOD STANDING — I am not some out of state defense attorney who is looking to get admitted (“pro hac”) to the US District Court one case at a time. And, just so it is said, I have nothing wrong with out-of-state attorneys who get admitted “pro hac” on a case-by-case basis to represent one client for one case, as long as they represent their clients COMPETENTLY.
The TorrentLawyer blog has become a giant with over 200+ articles on the various cases in which our Cashman Law Firm, PLLC has worked on. If you have come to this page, you likely received a settlement demand letter from Bryan N. DeMatteo asking for $5,600 (or, whatever he is asking for at the moment; some attorneys are asking for $7,500, and others are asking for $2,500). Either way, you missed the deadline to file a motion to quash (which is fine), and your ISP handed over your information to the plaintiff attorney. Now you are facing another deadline — DeMatteo’s deadline — which is probably some date coming immediately, as in tomorrow.
You want to know your options, and *this article* is more of an advanced article describing a historical view of the case law which has been achieved in the New York Southern and Eastern District Courts (in 2012), versus the 2017 cases in which Bryan DeMatteo is seeking to “undo” the achievements we have achieved in the fight against copyright trolling, and why things at the moment are in his favor based on the circumstances.
To learn about the New York ME2 Productions lawsuits, read these cases in this order:
“Just The Facts” — a short to-the-point article about the ME2 Productions, Inc. cases and what you can do about them,
How is Bryan N DeMatteo trying to legitimize his ME2 Productions (Mechanic: Resurrection movie) cases?
Earlier this morning, I wrote that “Bryan DeMatteo is facing an uphill battle to legitimize his “movie” bittorrent cases.” In order to clarify what he is doing, please allow me to elaborate. Bryan N DeMatteo is seeking to undo some of the progress we made in 2012 in the Digital Sin, Inc. cases. Digital Sin, Inc. was a bittorrent-based copyright infringement set of lawsuits against internet users who went onto bittorrent websites such as The Pirate Bay and KickAssTorrents (“KAT”) to download adult films. Because Bryan N DeMatteo’s cases deal with “movies” rather than “adult films,” it appears to me as if he is seeking to separate out movie companies (as legitimate) from the adult film companies (as illegitimate) who sued hundreds of downloaders for EXACTLY THE SAME THING.
The difference between the 2012 Digital Sin, Inc. cases and the 2017 ME2 Productions, Inc. cases is that most defendants did NOT settle.
The difference between the Digital Sin, Inc. and other adult film lawsuits that plagued the federal courts in 2012 and the 2017 “movie” lawsuits is that back then, most defendants did NOT pay settlements. They either fought their cases, or they hired an attorney such as myself in what I referred to as an “ignore” route representation, where I would open up the line of communication between my client and the “copyright troll” attorney to convince that attorney that my client wasn’t the one who did the download (and thus would not be settling).
With hundreds of potential defendants in one lawsuit (e.g., Digital Sin, Inc. v. Does 1-240), this made it appear as if almost nobody was settling the claims against them. New York judges viewed these cases with suspicion, and correctly diagnosed them with the inherent faults and flaws that even today’s bittorrent-based copyright infringement cases suffer from. Namely, improper joinder, insufficient evidence to prove copyright infringement, etc.
However, in the 2017 ME2 Productions, Inc. cases, a high percentage of defendants ARE settling the claims against them (even if they did not do the download).
Today the cases no longer have 200+ defendants in each case (and in 2012, this was considered “small” because there were cases across the US that had 2,000+ John Doe Defendants filed in ONE lawsuit). Today, cases average between 1-20 “John Doe” defendants. Bryan N. DeMatteo lists the various defendants by their accused IP address, even though I remember seeing case law stating that “an IP address is not a person.”
So, as far as I am concerned, Bryan DeMatteo is calling the ME2 Productions, Inc. John Doe Defendants by another name, but don’t be deceived, they are still John Doe Defendants and have the same legal status as an unnamed defendant with a “John Doe” placeholder.
The Consequence of More Defendants Settling Cases is Legitimacy Given to Movie Download Lawsuits, UNDOING our work in the 2012 Digital Sin, Inc. cases.
The CONSEQUENCE of today’s smaller cases combined with the fact that plaintiff attorneys are happy to name and serve defendants is that the number of accused defendants who settle are higher (likely because “settlement factory” attorneys push defendants into settling when they should not settle).
As a result, instead of having a small handful of defendants who settle in a large case with hundreds of defendants, the HIGHER PERCENTAGE of defendants settling the claims against them (just to avoid being dragged though discovery) makes it look to the federal judge like the plaintiff’s movie cases are valid when in fact they suffer from EXACTLY THE SAME DEFECTS as the 2012 Digital Sin, Inc. cases suffered from.
In Summary, Bryan DeMatteo’s bittorrent lawsuits *will* succeed if there is a PERCEPTION by the court that he is succeeding.
In sum, the 2012 Digital Sin, Inc. downloaders used bittorrent to download the adult films. Similarly, the 2017 ME2 Productions, Inc. accused downloaders used Popcorn Time software or Showbox software [which uses bittorrent to stream the copyrighted movies to the viewers, often unbeknownst to the downloader]. Either way you look at it, the lawsuits from 2012 and 2017 are identical and should be subject to the same restrictions and new case law achieved in the Digital Sin, Inc. lawsuits.
However, if there is a PERCEPTION by the New York Judges that a high percentage of defendants are settling the claims against them, then this will make them believe that Bryan DeMatteo has done something different from the previous defendants. Namely, a higher settlement rate suggests that the DeMatteo has sued the right defendants. This is an unacceptable outcome, but one which I believe we are looking at for the time being given the circumstances of bittorrent lawsuits in their current form.
Who are the New York Southern & Eastern District Judges Presiding Over the ME2 Productions, Inc. Lawsuits?
The New York District Judges presiding over the ME2 Productions, Inc. lawsuits include Judge Brian Cogan, Judge Carol Bagley Amon, Judge Denise Cote, Judge Edgardo Ramos, Judge Frederic Block, Judge Kiyo Matsumoto, Judge Louis Stanton, Judge Margo Brodie, and Judge Paul Gardephe. If you search for most of their names (with the exception of Judge Ramos, who oversaw the Malibu Media, LLC lawsuits for my clients in 2012 — Jason Kotzker was the NY “copyright troll” attorney at the time, for those of you who have followed the blog over the years), almost NONE of the names will show up as having anything to do with the bittorrent cases.
In short, so far, DeMatteo has gotten lucky (except for NYSD Judge Ramos re: Case No. 1:17-cv-02284, which I expect to be dismissed immediately after Bryan DeMatteo reads this article [you’re welcome]), as none of the federal judges were involved in the 2012 Digital Sin, Inc. case consolidations. However, the results from the Digital Sin, Inc. case is “law” (or more accurately, “case law”), which is BINDING on even these federal judges when they adjudicate the ME2 Productions, Inc. lawsuits.
SCENARIO 2: IF YOU WOULD LIKE TO SPEAK ABOUT YOUR NEW YORK CASE AND YOUR OPTIONS, SET UP A PHONE CONSULTATION:
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
New York ME2 Productions Cases filed by Bryan DeMatteo (NY)
New York ME2 Productions, Inc. et al v. Doe-98.113.28.221 (Case No. 1:17-cv-02175) New York ME2 Productions, Inc. v. Doe-184.75.90.162 et al (Case No. 1:17-cv-02645) New York ME2 Productions, Inc. v. Doe-24.193.144.240 (Case No. 1:17-cv-01456) New York ME2 Productions, Inc. v. Doe-67.245.46.234 et al (Case No. 1:17-cv-03467) New York ME2 Productions, Inc. v. Doe-67.85.69.69 et al (Case No. 1:17-cv-05701) New York ME2 Productions, Inc. v. Doe-68.194.180.74 et al (Case No. 1:17-cv-00929) New York ME2 Productions, Inc. v. Doe-69.125.223.48 et al (Case No. 1:17-cv-01196) New York ME2 Productions, Inc. v. Doe-72.225.199.92 et al (Case No. 1:17-cv-02284) New York ME2 Productions, Inc. v. Doe-72.226.55.88 et al (Case No. 1:17-cv-01604) New York ME2 Productions, Inc. v. Doe-74.71.172.215 et al (Case No. 1:17-cv-01049) New York ME2 Productions, Inc. v. Doe-98.14.173.58 et al (Case No. 1:17-cv-02717)
As a NY Licensed Attorney for 10 Years, My Thoughts on Bryan DeMatteo and His Lawsuits.
Bryan DeMatteo runs DeMatteo Law, PLLC from the 5th Floor of 830 3rd Avenue in New York City (Midtown). I have dealt with him before, and he is anything but an “empty shell” attorney that I poke fun at on this blog. It was suggested that his cases are “just like any other bittorrent case” which is true as far as who his clients are, but Bryan fights his case differently from other plaintiff attorneys I have faced before. In short, be careful when hiring counsel to oppose this attorney, because he separates apart his lawsuits into different kinds of copyright infringement, and any “settlement factory” attorney will be caught off guard by this.
I became an attorney over ten years ago in New York, and I have been practicing law and representing New York clients for ten years.
While our Cashman Law Firm, PLLC was formed in Texas in 2010, our law firm continues to represent New York clients. [Why? Because New York is where I was born, and where I grew up playing stickball on the streets of Brooklyn. It is where I went to law school, and where I have all my roots as a New York licensed attorney.]
Bryan DeMatteo and the New York “Movie” Bittorrent Lawsuits
For the recent “movie” cases, Carl Crowell has an attorney who I have dealt with before — Bryan DeMatteo.
Bryan DeMatteo (also a patent attorney) is now suing defendants in the US District Court for the Southern and Eastern Districts of New York. Bryan DeMatteo is suing for the same four copyright holders I have discussed before in other articles:
What do I need to know about New York Attorney Bryan DeMatteo?
In representing a New York client, there are a few things to understand about Bryan N. DeMatteo of DeMatteo Law, PLLC:
1) Be sure to understand the innuendos of bittorrent technology. He does.
Bryan DeMatteo believes in the validity of these bittorrent-based copyright infringement lawsuits, which separates him from what I refer to as the “empty shell” local counsel plaintiff attorneys who I have seen read scripts provided to them by their copyright holder clients. In speaking to him (obviously it is best to have an attorney speak to him on your behalf), be sure you understand the innuendos of bittorrent technology, because he does. Show your incompetence, and he’ll likely plow right over your ignorance.
2) Bryan DeMatteo is on a mission to rectify a split in the NY Southern District Court.
This split happened in 2012, when our law firm (Cashman Law Firm, PLLC) was representing clients against Mike Meier (the plaintiff attorney at the time) in the Digital Sin[s] v. John Does 1-234 (Case No. 1:11-cv-08170) case. This case [into which all other NY bittorrent cases were combined] caused the controversy Bryan DeMatteo is looking to rectify.
Remember the Digital Sin, Inc. (NY) cases from 2012?
While the details of the split are not relevant, in 2012, many things happened.
2) Because the New York bittorrent cases were facing joinder problems (which the judges recognized as a valid problem in most of the New York bittorrent cases at the time), the John Doe Defendants in the New York bittorrent cases were severed and dismissed.
However, as a response to the dismissal, the plaintiff attorney would turn around and sue those same defendants as new John Doe Defendants in a second bittorrent case. This angered the judges.
“Lest plaintiff’s counsel think he can simply put cases against the severed and dismissed John Doe defendants into the wheel for assignment to yet another judge, I remind him of Local Civil Rule 1.6(a) [which requires the plaintiff attorney to bring the existence of potentially related cases to the attention of the Court].”
In sum, we were successful in forcing the plaintiff attorney to disclose whether these John Does were sued before, and in which cases they were sued.
3) Judges suggested that the New York plaintiff attorney pay 244 filing fees for 244 defendants x $350 each, rather than allowing him to pay one $350 fee [the fee in 2012 to file a lawsuit] to sue them all.
“They are dismissed because the plaintiff has not paid the filing fee that is statutorily required to bring these 244 separate lawsuits.” (p.4)
This would have amounted to $85,400 in filing fees if Digital Sin, Inc. wanted to go after the dismissed defendants from this case.
Needless to say, every one of our Cashman Law Firm, PLLC clients in the case were dismissed, and they were never filed against again. Since then, the three-year statute of limitations has run, and the plaintiff has lost the opportunity to sue my clients. Congratulations once again on hard earned, good results.
Since 2012, FIVE YEARS have passed, and now we have Bryan DeMatteo to contend with.
To bring you up to speed, it has been five (5) years since the Southern District of New York fiasco happened. While the rulings happened to Mike Meier and his Digital Sin, Inc. client, the “law” created by these cases is still binding on Bryan DeMatteo, and his New York ME2 Productions, Inc., New York UN4 Productions, Inc., New York Venice PI, LLC and New York Headhunter LLC lawsuits. He knows this, and thus his job in proving the validity of his cases is a complicated job.
In Sum: Unintended Consequences from 2012 => Bryan DeMatteo.
Unfortunately, as exciting as was was when our New York Southern District Court went “belly-up” for copyright trolls, the unintended consequence of our activities from five years ago is that now we have Bryan DeMatteo who has taken on these cases with “something to prove.”
In sum, New York bittorrent lawsuits are not a place for the weak minded, nor are they a place for someone not intricately familiar with the innuendos of copyright infringement. For cases against Bryan DeMatteo, it is best to have someone who knows the New York courts, who knows many of the New York federal judges, and who has had experience in fighting bittorrent-based copyright infringement cases in New York. Obviously I am one of them, and I have been fighting these cases since they were first filed in 2010.
I want to point out that as a result of this case (and other events that surrounded this case), Mike Meier is no longer filing bittorrent-based copyright infringement lawsuits in New York, and until recently (as Sophisticated Jane Doe properly put it), “Trolls are not welcome in the Southern District of New York anymore.”
SCENARIO 2: IF YOU WOULD LIKE TO SPEAK ABOUT YOUR NEW YORK CASE AND YOUR OPTIONS, SET UP A PHONE CONSULTATION:
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
Bryan DeMatteo New York Southern & Eastern District Cases:
New York ME2 Productions Cases filed by Bryan DeMatteo (NY)
New York ME2 Productions, Inc. et al v. Doe-98.113.28.221 (Case No. 1:17-cv-02175) New York ME2 Productions, Inc. v. Doe-184.75.90.162 et al (Case No. 1:17-cv-02645) New York ME2 Productions, Inc. v. Doe-24.193.144.240 (Case No. 1:17-cv-01456) New York ME2 Productions, Inc. v. Doe-67.245.46.234 et al (Case No. 1:17-cv-03467) New York ME2 Productions, Inc. v. Doe-67.85.69.69 et al (Case No. 1:17-cv-05701) New York ME2 Productions, Inc. v. Doe-68.194.180.74 et al (Case No. 1:17-cv-00929) New York ME2 Productions, Inc. v. Doe-69.125.223.48 et al (Case No. 1:17-cv-01196) New York ME2 Productions, Inc. v. Doe-72.225.199.92 et al (Case No. 1:17-cv-02284) New York ME2 Productions, Inc. v. Doe-72.226.55.88 et al (Case No. 1:17-cv-01604) New York ME2 Productions, Inc. v. Doe-74.71.172.215 et al (Case No. 1:17-cv-01049) New York ME2 Productions, Inc. v. Doe-98.14.173.58 et al (Case No. 1:17-cv-02717)
New York Headhunter LLC Cases filed by Bryan DeMatteo (NY)
New York Headhunter LLC v. Doe-173.56.227.169 et al (Case No. 1:17-cv-05314) New York Headhunter LLC v. Doe-69.124.0.132 et al (Case No. 1:17-cv-04155) New York Headhunter LLC v. Doe-72.80.132.46 et al (Case No. 1:17-cv-05895)
New York UN4 Productions Cases filed by Bryan DeMatteo (NY)
New York UN4 Productions, Inc. v. Doe-108.29.50.167 et al (Case No. 1:17-cv-03698) New York UN4 Productions, Inc. v. Doe-173.68.177.95 et al (Case No. 1:17-cv-03278) New York UN4 Productions, Inc. v. Doe-184.152.88.112 et al (Case No. 1:17-cv-04817) New York UN4 Productions, Inc. v. Doe-67.243.172.121 et al (Case No. 1:17-cv-03621) New York UN4 Productions, Inc. v. Doe-72.89.251.15 (Case No. 1:17-cv-04400) New York UN4 Productions, Inc. v. Doe-74.88.64.129 et al (Case No. 1:17-cv-04887)
New York Venice PI Cases filed by Bryan DeMatteo (NY):
New York Venice PI, LLC v. Doe-24.187.92.79 et al (Case No. 1:17-cv-04904) New York Venice PI, LLC v. Doe-24.44.143.124 et al (Case No. 1:17-cv-04249) New York Venice PI, LLC v. Doe-66.108.113.178 et al (Case No. 1:17-cv-05594) New York Venice PI, LLC v. Doe-68.173.101.58 et al (Case No. 1:17-cv-04076)
I received a phone call today asking me to write about the Game of Thrones HBO piracy lawsuits, but there are none.
Last year, HBO sent thousands of DMCA copyright infringement notices to internet users who were caught downloading or viewing the Game of Thrones episodes without an HBO subscription. As reported by Ernesto @Torrentfreak.com, HBO teamed up with IP-Echelon (an anti-piracy company), which was tasked with sending DMCA warning notices.[I referred to them as *WARNING* notices intentionally; you’ll see why soon.] These warning notices told accused internet users to remove any downloaded Game of Thrones episodes downloaded using bittorrent, and even instructed them ‘with a bit of wit’ to get a HBO subscription.
I received many phone calls from internet users who received these IP Echelon notices. However, unlike the DMCA settlement demand notices that accused internet users receive when they are caught downloading music (Chris Sabec from Rightscorp, a.k.a. Digital Rights Corp. sends these) or movies (Carl Crowell from Rights Enforcement sends these), the IP Echelon DMCA warning letters do not ask for money. They are merely, “Hey you, cut it out! Stop pirating my client’s TV episodes, delete what you did, and get a subscription” notices.
Obviously these notices should not be ignored. Home Box Office, Inc. (“HBO”) would be a formidable opponent if they started suing accused defendants in federal courts for copyright infringement. They have deep pockets, they have unlimited resources, and they likely have name brand recognition and respect from every federal judge in every federal court.
My opinion about IP Echelon and the HBO Game of Thrones DMCA notices.
Believe it or not, I believe HBO is going about this the right way. Instead of suing individual downloaders who are caught viewing or downloading the various Game of Thrones episodes, HBO and IP Echelon are focusing their efforts on REDUCING THE AVAILABILITY OF THE UNLICENSED VIDEOS. This means that they are taking steps to remove bittorrent trackers so that when someone clicks on a bittorrent file, the bittorrent tracker is dead (meaning, no bittorrent swarm and thus no infringement).
IP Echelon is also sending copyright infringement notices using the Digital Millennium Copyright Act (these are the “DMCA” notices) which they are having the various ISPs forward to subscribers who are “caught” downloading the Game of Thrones episodes.
“Caught,” but not punished.
By doing this, HBO successfully reduced the piracy of their Game of Thrones episodes, and they kept their fans loyal.
In sum, they are 1) monitoring and policing the availability of their content on piracy peer-to-peer networks, and 2) they are contacting individual downloaders warning them to acquire their copyrighted content the lawful way, e.g., purchasing an HBO subscription.
Great, but HBO was still missing the boat. HBO continued to cause their own piracy problems by allowing only Cable TV subscribers to access their content.
My biggest complaint against HBO: Failure to make content available to paying customers
For a while, my biggest critique of HBO was that they were not making their copyrighted content available to those who wanted to legitimately purchase a HBO subscription. Why? Because their “HBO GO” streaming add-on service was only available to those fans who paid a monthly Cable TV subscription.
“Cordcutters” (meaning, those who opted to “cut” their cable TV subscription) were outcasted. And as a result of not having a cable TV subscription, HBO inadvertently exacerbated their Game of Thrones piracy problem by preventing those who wanted to legitimately purchase access to watch the Game of Thrones episodes from doing so. In other words, no access = those would-be customers had no choice except to either not watch the series, or to turn to piracy.
HBO created criminals out of their fans by being loyal to the cable companies over their own customers. This was likely a smart business decision (cable companies pay HBO huge licensing fees for their content), but a wrong decision if they wanted to stop the piracy of their videos.
HBO responds to our complaints and makes content available on Amazon, Hulu
HBO definitely has my respect, especially because they were flexible enough to notice that they were alienating their fans by allowing them to only connect through a Cable TV subscription.
HBO not only noticed that they were causing their own piracy problem, they took steps to fix it by making their content available to Amazon Prime Video customers, and to Hulu customers.
Thus, if you are an Amazon Prime subscriber, you can add-on an HBO subscription for $14.99/month.
If you are a Hulu subscriber, you can also watch HBO as an add-on for the same $14.99/month.
Is $14.99/month a fair price for an HBO add-on subscription?
$14.99/month is more than an entire Netflix subscription, and last I checked, it is more than a Hulu subscription. Is it worth it to pay an additional $14.99/month just to have access to HBO shows?
It depends on each person.
In the end, the “market” will decide whether this is too much or too little to ask for to obtain a monthly subscription to HBO’s exclusive content. If people pay, then it will stay at this price (or increase, if there is enough demand). If people do not pay, then HBO will lower their price until they convert the would-be pirates into customers.
In Summary, HBO is doing things right.
The point is that HBO is taking steps to not only eliminate the availability of pirated content, and not only are they contacting the subscribers through their IP Echelon partner and instructing them to stop pirating their copyrighted content, but they are also taking smart steps to make their content available to those who wish to purchase their content.
NOTE: HBO will never get rid of piracy 100%, as this is nearly impossible and there will always be those internet users who will pirate copyrighted content, even when the paid version is almost free. [Case in point: Many Android apps are free, and the paid versions are $1.99 for a lifetime license to that app. Yet, there are still those users who will go out of their way to install the pirated version of that $1.99 paid app.] No doubt, HBO viewers will also always have this problem.
At the very minimum, however, I believe with every fiber of my being that HBO is handling their piracy problem the right way, and for this, HBO has my full support and respect.
…Do I need to hire you if I receive an IP Echelon DMCA notice?
Absolutely NOT. There is nothing that our Cashman Law Firm, PLLC needs to do for you to handle your HBO IP-Echelon DMCA notice.
Why? Because: 1) The IP Echelon DMCA notices are not copyright infringement lawsuits. 2) The IP Echelon DMCA notices are not settlement demand letters. 3) The IP Echelon DMCA notices are not affiliated with your ISP, and thus no response to your ISP is requested or required. 4) HBO is not suing internet users for copyright infringement… at least not yet.
In sum, there is nothing that you need me to do for you if you received an IP Echelon DMCA notice. The notice is merely a warning letter telling you to stop downloading their client’s copyrighted content illegally, and to find legal ways to obtain their content if you want to continue watching it.
IF THIS CHANGES, and HBO sues defendants for copyright infringement, you can be sure I would be screaming about this from the hilltops. IF HBO starts asking for money settlements in their DMCA notices, you can be sure I would write about it. However, for now, select a legal method of viewing HBO’s exclusive content, and enjoy the shows.
CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
While we are far from the end of August, we have seen a significant shift in the filing trends of the ME2 Productions movie lawsuits, a continuing trend in the UN4 Productions movie lawsuits, growth in the Headhunter LLC movie lawsuits, and an expansion of the Venice PI LLC movie lawsuits. This shift in filing trends is the subject of this NEW BITTORRENT CASE FILINGS UPDATE (8/2017). We also have seen the birth of a new baby copyright troll with just 2 cases in Oregon, “POW Nevada, LLC.”
NOTE: “POW” Nevada, LLC stands for “Prisoner of War,” and the movie they are suing for is called “Revolt (2017), a.k.a. Prisoner of War.” I saw the trailer for this movie, and while I am less than enthusiastic about the prisoner of war alternative title, all I could say is, “Killer Robot steel tentacles — I’m in!”
Yes, those are killer robot tentacles being launched at the soldier’s face.
They will then tell their potential clients that “copyright law” gives the winner of the lawsuit all of their attorney fees(which is true in theory, but not in practice). In other words, “pay me $300/hour for the next 100 hours of work, and WHEN YOU WIN, you’ll get all that money back from the criminal copyright trolls who deserve everything that comes to them.” However, what they do not tell you is that attorney fees only get awarded to the party who “wins” the case when it is dismissed by a judge or a jury because they find that based on the evidence, no copyright infringement occurred. In other words, the legal speak for this is that attorney fee awards for copyright infringement lawsuits are only awarded “to the prevailing party who prevails ON THE MERITS.”
These defense attorneys are WELL AWARE that the copyright troll plaintiff attorneys are under instructions to dismiss an innocent defendant after discovery, but before the defense attorney files a summary judgement motion (the first place a judgement “on the merits” can happen).
Essentially, a summary judgement motion tells the court,
“Dear Judge, the plaintiff attorney has searched my client’s computer. He has asked my client questions under oath. He has conducted a video recording of my client answering his questions. With all this, he cannot prove the elements of copyright infringement, so please dismiss the case.”
Again, a plaintiff attorney will dismiss a defendant BEFORE the summary judgement is filed, which means that the defendant will LOSE all the tens of thousands of dollars he paid in attorney fees TO HIS OWN LAWYER!
Bad Settlement Factory Attorneys
I have already covered the topic of “bad settlement factory attorneys” here, and here (and here).
[Essentially, settlement factories pretend that they do not only settle clients, but every client interview leads to the answer of “you should settle,” or, “wait to see if they come after you and send you a settlement demand letter, then settle,” or some variation thereof.
If you retain a settlement factory attorney, you will be paying less for your attorney, but you do not get the value for the amount you are paying. Why? Because 1) the physical amount of time they actually spend on your settlement versus the amount of money you pay gives them a $500+/hour hidden rate because they actually do not negotiate your settlement price. As a result, the amount you end up paying ends up being significantly higher than if you just hired an attorney (me or anyone else) to negotiate a settlement to right way, without cutting any corners. Oh, and the settlement factories will provide you merely a boilerplate settlement agreement (which has you admit guilt, and which potentially opens you up to future lawsuits).
As a result of my articles exposing their methods, these settlement factories have altered their scripts claiming that they do actually negotiate each settlement price, and that they actually do negotiate the settlement agreements, but this is a marketing trick. They don’t, I’ve seen the agreements.]
So why is it relevant that there have only been six (6) cases filed so far this month?
I am writing this article on 8/8/2017, so we are only eight days into the month. However, one of the strengths of our Cashman Law Firm, PLLC is that we pay attention to:
which plaintiff attorneys are suing for copyright infringement on behalf of which movie production studios,
what the proclivities of each plaintiff attorney are (do they name and serve defendants, do they drag them through discovery before dismissing, or can we quickly negotiate a dismissal for an innocent client without paying a settlement),
what the mood of the federal court is where the lawsuits are filed (copyright trolls choose where to sue based on where they believe they will find “copyright troll friendly” judges) [this is called forum selection for those of you who are interested], and
whether the underlying movie company is willing to pay their attorney to name and serve clients and “drag them through the mud” before dismissing, or whether it is cost efficient, meaning, they pay attention to the bottom line.
Why I just spent an entire paragraph listing our law firm’s strengths is to share that when there is a change in a trend, we notice, and there has been a change in the trend.
ME2 Productions, Inc. cases are coming to an end, or at least that is how it appears. There have been four (4) cases filed in four courts (Washington, Colorado, Hawaii, and New York). *That is ONE lawsuit per state,* a mere “drip” compared to the volume of cases they have filed in recent months.
ME2 Productions Inc v. Doe 1 et al (Case No. 2:17-cv-01077) (Washington Western District Court) ME2 Productions, Inc v. Doe 1 et al (Case No. Case No. 1:17-cv-01810) (Colorado District Court) ME2 Productions, Inc. v. Doe 1; et al. (Case No. Case No. 1:17-cv-00320) (Hawaii District Court) ME2 Productions, Inc. v. Doe-67.85.69.69 et al (Case No. 1:17-cv-05701) (New York Southern District Court)
UN4 PRODUCTIONS (BOYKA: UNDISPUTED 4) MOVIE LAWSUITS
Expect to see more UN4 Productions, Inc. cases filed, as this lawsuit appears to be targeting “ethnic” defendants with “deeper pockets.” These include Arabic speaking defendants, French speaking defendants, and Spanish speaking defendants.
UN4 Productions, Inc. v. Doe 1 et al (Case No. Case No. 1:17-cv-01689) (Colorado District Court) UN4 Productions, Inc. v. DOE Defendants 1-20 (Case No. Case No. 1:17-cv-00331) (Hawaii District Court) UN4 Productions, Inc. v. Doe-72.89.251.15 (Case No. 1:17-cv-04400) (New York Eastern District Court) UN4 Productions, Inc. v. Does 1-16 (Case No. Case No. 4:17-cv-02115) (Texas Southern District Court) UN4 PRODUCTIONS, INC. v. DOES 1-17 (Case No. Case No. 1:17-cv-05563) (Illinois Northern District Court) UN4 PRODUCTIONS, INC. v. DOES 1-19 (Case No. Case No. 1:17-cv-05561) (Illinois Northern District Court) UN4 PRODUCTIONS, INC. v. DOES 1-26 (Case No. Case No. 1:17-cv-05565) (Illinois Northern District Court) UN4 PRODUCTIONS, INC. v. DOES 1-31 (Case No. Case No. 1:17-cv-05567) (Illinois Northern District Court) UN4 PRODUCTIONS, INC. v. DOES 1-35 (Case No. Case No. 1:17-cv-05569) (Illinois Northern District Court)
HEADHUNTER LLC (“A FAMILY MAN”) MOVIE LAWSUITS
The Headhunter movie lawsuit campaign is still in its infancy. Only appearing on the scene recently, most of their cases are also young and in their infancy. This means that even though cases have already been filed across the US, federal judges have not yet approved the plaintiffs’ requests to send subpoenas to the ISPs of accused defendants to unmask their identities. Thus, many of those who have been accused of being John Doe defendants do not even know they have been implicated in their lawsuits.
Headhunter LLC lawsuits in sum have already “dropped their seeds,” and now while they wait for those filings to sprout and ensnare hundreds of families across the US for the “A Family Man” movie (irony), Headhunder, LLC is expanding the scope and bredth of their filings, and they are filing in liberal states (Texas is very conservative as a rule, but the city of Houston, and the various nerve centers are all liberal — that way they can vote Republican in every federal election, but they vote Democrat in-state to provide services to Texas citizens). I have not figured out the relevance of their choosing this demographic to sue for the “A Family Man” movie, but as these cases mature, I’ll begin to see the trends as they unfold.
Headhunter LLC v. Doe-173.56.227.169 et al (Case No. 1:17-cv-05314) (New York Southern District Court) Headhunter LLC v. Doe-69.124.0.132 et al (Case No. 1:17-cv-04155) (New York Eastern District Court) Headhunter LLC v. Doe-72.80.132.46 et al (Case No. 1:17-cv-05895) (New York Southern District Court) Headhunter, LLC v. Doe-73.191.98.246 (Case No. 1:17-cv-00793) (Virginia Eastern District Court) Headhunter, LLC v. Does 1-17 (Case No. Case No. 4:17-cv-02352) (Texas Southern District Court) Headhunter, LLC v. Does 1-9 (Case No. Case No. 5:17-cv-00069) (Virginia Western District Court) HEADHUNTER, LLC v. JOHN DOES 1-10 (Case No. Case No. 2:17-cv-02985) (Pennsylvania Eastern District Court) HEADHUNTER, LLC v. JOHN DOES 1-11 (Case No. Case No. 2:17-cv-02986) (Pennsylvania Eastern District Court)
Stay tuned; there will be many more of these lawsuits.
What this means for you if you are a defendant in this lawsuit is that the plaintiff attorneys across the US are likely funded and able to spend large amounts of time and hours going after the many defendants for Venice PI, LLC cases. This means that they will likely name and serve defendants who do not settle, and they will drag innocent defendants into and through discovery before dismissing them. Contrast this to a cost conscious copyright holder who wants to spend as little as possible on their copyright trolling campaign — defendants from the cost conscious copyright holders will be dismissed outright and any naming and serving of defendants will be for “face saving” purposes only (e.g., to fool the federal judges into thinking that these copyright holder plaintiffs are “serious” about proceeding against those downloaders who actually downloaded the film).
This copyright holder will likely be a problem for accused defendants.
Because there are so many new defendants implicated by Venice PI, LLC, I am sorting the lawsuits by state so that it is easier to see how many families will be affected by these lawsuits.
Venice PI ISP Subpoena cases recently filed in the Colorado District Court (5) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 1:17-cv-01664) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 1:17-cv-01787) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 1:17-cv-01861) VENICE PI, LLC v. John Does 1 – 15 (Case No. Case No. 1:17-cv-01870) Venice PI, LLC. v. John Doe 1 et al (Case No. Case No. 1:17-cv-01850)
Venice PI ISP Subpoena cases recently filed in the Indiana Northern District Court (4) (NOTE: I was just there a few weeks ago.) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-00284) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-00285) VENICE PI, LLC v. DOE 1 et al (Case No. Case No. 1:17-cv-02274) VENICE PI, LLC v. DOE 1 et al (Case No. Case No. 1:17-cv-02328)
Venice PI ISP Subpoena cases recently filed in the New York Southern and Eastern District Courts (3) Venice PI, LLC v. Doe-24.44.143.124 et al (Case No. 1:17-cv-04249) Venice PI, LLC v. Doe-68.173.101.58 et al (Case No. 1:17-cv-04076) Venice PI, LLC v. Doe-66.108.113.178 et al (Case No. 1:17-cv-05594)
Venice PI ISP Subpoena cases recently filed in the North Carolina District Courts (11) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 5:17-cv-00337) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 5:17-cv-00339) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 5:17-cv-00340) Venice PI, LLC v. Does 1-11 (Case No. Case No. 5:17-cv-00334) Venice PI, LLC v. Does 1-12 (Case No. Case No. 5:17-cv-00333) Venice PI, LLC v. Does 1-14 (Case No. Case No. 5:17-cv-00367) VENICE PI, LLC v. DOES 1-10 (Case No. Case No. 1:17-cv-00671) VENICE PI, LLC v. DOES 1-10 (Case No. Case No. 1:17-cv-00676) Venice PI, LLC v. Does 1-10 (Case No. Case No. 3:17-cv-00409) Venice PI, LLC v. Does 1-10 (Case No. Case No. 3:17-cv-00445) Venice PI, LLC v. Does 1-11 (Case No. Case No. 5:17-cv-00128)
Venice PI ISP Subpoena cases recently filed in the Pennsylvania Eastern District Court (5) VENICE PI, LLC v. JOHN DOES 1-10 (Case No. Case No. 2:17-cv-03322) VENICE PI, LLC v. JOHN DOES 1-11 (Case No. Case No. 2:17-cv-03324) VENICE PI, LLC v. JOHN DOES 1-14 (Case No. 2:17-cv-03325) VENICE PI, LLC v. JOHN DOES 1-7 (Case No. Case No. 2:17-cv-03323) VENICE PI, LLC v. JOHN DOES 1-8 (Case No. Case No. 2:17-cv-03326)
Venice PI ISP Subpoena cases recently filed in the Texas Southern District Court (4) (NOTE: I wrote about these cases here.) Venice PI, LLC v. Does 1-10 (Case No. Case No. 4:17-cv-02285) Venice PI, LLC v. Does 1-13 (Case No. Case No. 4:17-cv-02395) Venice PI, LLC v. Does 1-16 (Case No. Case No. 4:17-cv-02203) Venice PI, LLC v. Does 1-16 (Case No. Case No. 4:17-cv-02244)
Venice PI ISP Subpoena cases recently filed in the Washington Western District Court (6) Venice PI LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-01074) Venice PI LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-01075) Venice PI LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-01076) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-01160) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-01163) Venice PI, LLC v. Doe 1 et al (Case No. Case No. 2:17-cv-01164)
Venice PI ISP Subpoena case recently filed in the Hawaii District Court (1) Venice PI, LLC v. Doe 1; et al. (Case No. Case No. 1:17-cv-00335), and
Venice PI ISP Subpoena case recently filed in the Virginia Western District Court (1) Venice PI, LLC v. DOES 1-15 (Case No. Case No. 5:17-cv-00070)
THE ANOMALY: POW NEVADA, LLC (REVOLT)
If I called Headhunter, LLC movie lawsuits an “infant,” then POW Nevada, LLC would be a newborn. POW Nevada is suing downloaders for the sci-fi movie “Revolt.” The movie trailer for this film looks intense. While this movie has not yet appeared on Carl Crowell’s RIGHTS ENFORCEMENT (RIGHTSENFORCEMENT.COM) list of clients, he is indeed the plaintiff attorney for these lawsuits. Thus, once again, this appears to be a “common copyright troll” lawsuit scenario. There are only two test cases currently filed against two defendants, so let’s see what happens with this copyright holder. If the copyright holder’s lawsuits start metastasizing into federal courts across the US, I’ll pay more attention to this one. For now, it’s a newborn and there are only two defendants.
POW Nevada ISP Subpoena test cases filed in the Oregon District Court (2) POW Nevada v. Doe-73.157.238.5 (3:17-cv-01134) POW Nevada, LLC v. Doe-76.27.245.245 (3:17-cv-01133)
In Summary
I would hate to end with a whimper rather than a bang, but really, the answer is that there are movie lawsuit campaigns — each one has its beginning, its peak, and its end.
As far as number of cases filed, this month in August, it appears as if the movie lawsuits are taking a breather. There is definitely a slowdown, perhaps because the college kids are on summer break, and the real lawsuits will start being filed after they return to college. On average, these movie copyright trolls file around 40 cases each month, with occasional spikes of 100+ cases in a “high season,” and 200+ cases filed in the spring.
Venice PI, LLC (“Once Upon a Time in Venice”) movie lawsuits
Headhunter, LLC is suing for the unlawful download of “A Family Man” movie (not to be confused with Nicholas Cage’s “Family Man” movie from a number of years ago.)
List of Texas cases filed by Gary Fischman in the last month:
HEADHUNTER (17 “JOHN DOE” TEXAS DEFENDANTS): Headhunter, LLC v. Does 1-17 (Case No. 4:17-cv-02352)
UN4 PRODUCTIONS (51 “JOHN DOE” TEXAS DEFENDANTS) UN4 Productions, Inc. v. Doe 1 et al (Case No. 4:17-cv-01685) UN4 Productions, Inc. v. Does 1-13 (Case No. 4:17-cv-01834) UN4 Productions, Inc. v. Does 1-16 (Case No. 4:17-cv-02115)
VENICE PI (55 “JOHN DOE” TEXAS DEFENDANTS) Venice PI, LLC v. Does 1-10 (Case No. 4:17-cv-02285) Venice PI, LLC v. Does 1-13 (Case No. 4:17-cv-02395) Venice PI, LLC v. Does 1-16 (Case No. 4:17-cv-02203) Venice PI, LLC v. Does 1-16 (Case No. 4:17-cv-02244)
To those 120+ Defendants who are implicated by Gary Fischman as “John Doe” defendants in this lawsuit: Understand that the Texas federal judges will likely allow Gary Fischman to send a subpoena to the Comcast & AT&T ISPs to obtain the identities of those accused of downloading the various movies.
1) Read the Frequently Asked Questions (FAQs) about your particular lawsuit.
First, read about your particular movie lawsuit (see FAQs on the lawsuits here):
NOTE: Do not be fooled — each of these movies have become lawsuits because of Carl Crowell and his “common troll” RIGHTS ENFORCEMENT (RIGHTSENFORCEMENT.COM) entity, of which Gary Fischman appears to be his Texas local counsel. We understand that Crowell (or one of his attorneys) have contacted each of the movie production companies and have secured a license to sue for copyright infringement on their behalf. Thus, the various FAQ pages will be similar, because it is the same entity that is behind the scenes of each of these movie lawsuits.
2) Learn about what an “objection with the court” or a “motion to quash” is, and whether you want to file one.
The letters from the ISPs will tell you that you have 30 days to file an objection with the court (which is referring to a motion to quash) before they are forced to hand over your information to Gary Fischman.
NOTE: The link I provided you above is from an article I wrote in *2010*, and now we are in 2017. This should give us some credibility, if we did not already have some in your eyes that we have an idea of what is going on in these cases. The motion to quash issue was figured out by us attorneys SEVEN YEARS AGO, and yet there are still new law school graduates and other attorneys who still try to sell “motion to quash” packages, claiming they will “expose the fraud” of these cases for the same amount of money you could have settled for and guaranteed an exit from the lawsuit (just to be clear, a settlement is NOT the least expensive option in handling cases such as these). A motion to quash is NOT THE PLACE TO FIGHT YOUR LAWSUIT, and judges will get upset if you misuse this tool. A motion to quash is a tool to determine 1) whether the subpoena is valid, and 2) whether the federal court has PERSONAL JURISDICTION over the accused defendant.
Read about motions to quash here, understand the likely response if you file a motion to quash, and understand the likely question a federal judge will ask if you file a motion to quash. For those of you who do not want to switch to another article, the short answer is that a motion to quash is a good tool to stop the ISP from handing out your information if the federal court does not have PERSONAL JURISDICTION over you (e.g., if you live in one state, but are sued in another state). However, if you (an unnamed “John Doe” defendant) file a motion to quash, understand that the likely response from the plaintiff attorney is to oppose your motion to quash. The plaintiff attorney will likely state that you do not have STANDING to file the motion to quash because you are not a named defendant in this case. [Plus, the subpoena was not issued to you, but to your ISP, and thus you are not a recipient of this subpoena and it should be the ISP who should file the motion to quash, not you.] In short, don’t jump into a motion to quash frenzy just because you learn that the legal mechanism to stop a subpoena recipient from complying with the subpoena is called a motion to quash.
A COMMON MISCONCEPTION is that the due date on the ISP subpoena is the date you lose your anonymity. Wrong. The date you lose your anonymity is the date your plaintiff attorney realizes that he will not be getting a settlement from you and he decides to change your status from a “John Doe” defendant to a “named defendant (your name as the defendant)”.
4) Learn about settlement factories, settlement options, and *when NOT to settle*.
Lastly, be aware that there are a number of settlement factories out there who will convince you that settling is the “cheapest” method of getting out of this case. This is simply not true. The fact of whether you actually downloaded the movie is possibly the most relevant piece of information in determining whether to settle. If you did not do it, then hiring an attorney to convince the plaintiff attorney not to name and serve you because you did not do the download could be the smartest thing you could do in any of these cases. Question your attorneys and ask what percentage of cases they settle, and what percentage of cases they do not settle.
What if you DID do the download (or you DID watch the movie)?
If you have done the download for which you were sued (or if you have watched the movie), the second most relevant is what else you have downloaded, watched illegally, or what else is in your bittorrent software’s download folder. The reason for this is because some bittorent clients “announce” to the bittorrent network which movies, music, e-books, and software you have downloaded, and which are actively in your “Download” folder available to be uploaded.
In the end, having your attorney know the personality of your plaintiff attorney is possibly one of the most important items to consider when hiring an attorney. Specifically with Gary Fischman, he has the mind of an engineer, and he treats his cases as such. Understanding how he thinks in considering each defendant is important in obtaining the best result, whether that is not settling the case, negotiating a settlement, or fighting the claims against you in litigation.
CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
You CAN be sued for using bittorrent-based Kodi Add-ons
I almost fell off my chair when I read this. Kodi users are being sued for copyright infringement?!? The answer is yes, Kodi users who are tweaking the Kodi software to run Kodi Add-ons which provide copyrighted movies using peer-to-peer (P2P) or bittorrent are 100% at risk of getting sued for copyright infringement.
Didn’t I write many articles saying that Kodi users wouldn’t get sued?
Yes. I have been watching this topic for years now on whether it is possible for someone streaming movies to get caught — not in the context of Kodi Add-ons, but in general. Until recently, the answer was “no, the copyright trolls have not yet caught up with technology, and there is no way a person will get sued for streaming movies.” Today I change my opinion, but as you’ll read, I do so cheaply because the cause of getting caught using Kodi is the fault of Kodi Add-ons developers who incorporated bittorrent into their plug-ins.
2015 – “No, you CANNOT get sued streaming videos.”
Jumping back a bit, the first time I wrote about the possibility of internet users getting caught streaming was in October, 2015. Fresh in the mind of the internet was the Ashley Madison hack exposing millions of internet users who had an account on their “let’s cheat” website. The topic of whether it was possible to have your adult film viewing habits exposed to the public was fresh on the minds of internet users. My opinion back then was that “you likely CANNOT get caught streaming adult films.” Then in 11/2015, I was asked whether an internet user can get caught viewing “You Tube” like videos, and my opinion was, “maybe, but it likely would not happen because there are too many steps.”
2017 – “It’s possible to get sued, but the technology needs to advance and the trolls are still stuck on bittorrent lawsuits.”
As a response, a viewer asked me to analyze Kodi and the Amazon TV Fire Sticks, and again in 3/2017, I wrote a second article on Why I would NOT put Kodi on an Amazon Fire TV Stick“. At the time, I was still of the opinion of “you likely won’t get caught, but beware of Amazon turning you in.” Again, this opinion had nothing to do with the Kodi Add-ons, as I did not suspect any developer would create Kodi Add-ons which connected to the bittorrent networks. That would have been silly, and any developer that knew anything about piracy lawsuits wouldn’t be reckless enough to expose their users to the bittorrent networks.
In 5/2017, I applied this line of thought to write an update on the risks of using Kodi on an Amazon Fire TV stick, and I wrote that “there is another way to get sued using Kodi on an Amazon Fire TV Stick — via Google Analytics.” So while my answer was now “yes, you can get caught,” my thought was “just block the Google Analytics plug-in and you don’t need to worry about this.” As far as copyright trolls suing Kodi users based on these revelations, well, this was far into the future. Once again, no mention of Kodi Add-ons.
What changed? How are Kodi users getting sued?
What I did not anticipate is that there are a number of Kodi Add-ons which use bittorrent to provide copyrighted content to their users. Obviously if certain Kodi Add-ons are using bittorrent — and the assumption is that the Kodi user is using Kodi without a VPN — then YES! Someone using Kodi Addons which connect to streamed content via “peer-to-peer (P2P)” bittorrent networks can certainly get caught!
Why using Kodi Addons can be the same as using a bittorrent client
Let’s simplify this.
If you use Kodi with a VPN connection, and the Kodi Addons plug-in that you enable provides content to you via bittorrent, *THEN YOUR KODI SOFTWARE IS NOTHING OTHER THAN YET ANOTHER BITTORRENT APPLICATION*. What this means is that when your Kodi Addon connects to the bittorrent, it is *YOUR* IP address that shows up in the bittorrent swarm. Thus, when the copyright troll or their so-called “investigators” download the list of IP addresses who have downloaded a particular movie, your IP address will show up. At that point you have been caught downloading or streaming the copyrighted movie without a license, and you should not be surprised if you receive a subpoena notice from your ISP informing you that you have been implicated as a John Doe defendant in a copyright infringement lawsuit.
It really does not matter that you were using Kodi, because using Kodi with a Kodi Addon which downloads movies for you using bittorrent is the SAME as you downloading that same movie from The Pirate Bay using a bittorrent client.
Which Kodi Add-ons use bittorrent?
So, the next question is… which Kodi Addons use bittorrent? (Kudos to Sam Cook, my source for this information. If anyone knows of others, please feel free to add them to the comments below this article, and I will update this list.)
As of a few months ago, the following Kodi Addons use bittorrent:
Quasar
Popcorn Time
Plexus
Ace Stream
SportsDevil
P2P Streams
Castaway
Red Beard
Bubbles
NOTE: Why some of these Kodi Addons might no longer exist
NOTE: Obviously using Kodi to stream movies or copyrighted content was not why Kodi exists. However, for the purpose of this article, assume you are tweaking Kodi to stream movies.
Before you use one of the Kodi Addons, check to see whether it uses bittorrent or some form of P2P to download content for its users. Assuming you will be using Kodi for the purpose of acquiring or viewing copyrighted movies without a license (again, not my recommendation), avoid these plug-ins and any plug-ins which connect you unwittingly to bittorrent networks.
Generally speaking, if the setup or configuration of an add-on requires you to make significant changes to your environment, it’s probably to support p2p. If the setup installs and then starts showing you sources to stream from immediately without having to add/configure a bunch of extra crap, it’s just direct streaming from a web source and has no p2p/upload component to it. The only 2 I’ve seen that are “recommended” by certain people and are p2p are sopcast and acestream. anything else just blatantly calls itself “bit torrent stream” or “best torrent addon” or “p2p streams” which should all be no-go’s if you don’t already have experience masking your location.
My Opinion: Kodi Add-Ons can get you sued.
In sum, back to Kodi itself. It is no longer my opinion that you cannot get sued for using Kodi. If you are using one of the many Kodi Addons which connect a user to copyrighted content using bittorrent, then of course you can get sued. The reason for this is bittorrent exposes the IP address of the user who is not masking their IP address with a VPN. Personally, it is careless for programmers to make Kodi addons which use bittorrent, which is not what the Kodi software was meant to do.
CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
I didn’t want to let this one slide. Remember the Siemens Product Lifecycle Management (Siemens PLM) lawsuits (where Siemens sued a number of engineers who used their NX software without a license)? Well, they have filed their newest copyright Infringement lawsuit, this time against 97 John Doe Defendants (here in our own Texas Southern District Court, no less).
Siemens Product Lifecycle Management Software Inc. v. Does 1-93 (4:17-cv-01796), filed June, 2017
Over time, the lawsuit progressed, and eventually Siemens dismissed the lawsuit once they realized who they wanted to name and serve in their own lawsuits, and they filed individual copyright infringement lawsuits against companies they discovered were using their software without a license.
WAVE 2
In Wave 2, Siemens filed a similar lawsuit, this time against 100 new defendants. They surprised a number of defendants with settlement numbers of $50,000+ (eventually, we learned that they were settling licenses to their software, and they actually cost that much). This second wave lawsuit “on the books” looked to be a failure because they missed a FRCP Rule 4(m) deadline to name and serve defendants. As a result, they dismissed the entire lawsuit, however, I know that they continued after the dismissal to contact accused defendants (or their attorneys) with the intention of having those accused defendants [now dismissed] purchase a license to cover their use of the Siemens PLM NX software.
WAVE 3
Now in Wave 3, I do not yet know whether these 97 John Doe Defendants are from the same pool as the earlier lawsuits were filed, or whether these are from an entirely new pool of accused infringers. However, at least the lawsuit itself (its intentions, and what to expect) are no longer a mystery.
CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
What is a Motion to Quash, and how is it relevant in my copyright infringement lawsuit?
The first thing an accused defendant learns when reading the subpoena letter sent to him by his ISP is that:
1) He was implicated as a one of a small set of “John Doe” Defendants in a copyright infringement lawsuit. 2) The copyright infringement lawsuit was filed by a copyright holder apparently owning the rights to a movie he clicked on or downloaded. 3) He is being sued for $150,000 for the download of that movie. 4) He may or may not have actually downloaded that movie. 5) His ISP is being forced by a subpoena ordering them to turn over his true identity (along with other relevant information).
After asking around, he learns: …6) There is a way to stop the ISP from handing out his contact information, and that is filing an “objection with the court.” 7) The “objection with the court” that he would file is called a motion to quash.
Motions to quash are not the answer, and here is why:
A motion to quash is the first piece of “legal jargon” an accused defendant grasps onto.
The accused defendant thinks, “I am going to quash the subpoena!” Then the next logical thought is to search the internet for “motions to quash,” or “forms on how to file a motion to quash,” etc. What that accused defendant gets in the search results is almost never his answer on how to file the motion to quash, but some enterprising attorney who decided that he will use this term to lure him in as a paying client for many months to come.
Faced with the prospect of hiring an attorney to file a motion to quash for him, the accused defendant never asks, “should I file a motion to quash?”
Obviously as an attorney I need to dance around this issue because this blog is not to be considered legal advice. However, NO, contrary to popular thought and mob rule, it is my belief having defended “copyright troll” bittorrent-based copyright infringement cases for now OVER SEVEN YEARS that motions to quash are not an effective tool for stopping your ISP from handing out your information to the plaintiff attorney.
[The actual context is that this would be a motion to quash (or nullify) the subpoena which is forcing the ISP to hand over your information. The attack itself is on the validity of the subpoena, not the copyright troll or the plaintiff.]
The question a judge must determine when faced with a motion to quash is “does this John Doe Defendant live in the jurisdiction or territory in which my federal court has power and control to enforce the laws over that defendant?”
When is a motion to quash successful?
A motion to quash is successful if the accused John Doe defendant filing the motion to quash lives in a state OTHER THAN where the lawsuit was filed. For example, an accused defendant who is living in New York, and not in California where the lawsuit was filed), then the California federal judge will sever and dismiss that defendant from the lawsuit. The motion to quash the subpoena as to that John Doe Defendant will be successful, and the ISP is released from its obligation to hand over the information for that John Doe Defendant to the plaintiff attorney.
The dismissal will be, however, “without prejudice,” meaning that the copyright holder will still have three (3) years from the alleged date of infringement to sue that defendant in the federal court of the state in which he or she lives.
When is a motion to quash not successful?
A motion to quash a subpoena is not successful when the accused “John Doe” defendant lives in the state in which he was sued. Here, the judge will determine that the federal court has personal jurisdiction over that defendant, and the motion to quash will likely be denied.
The effect of this is that as soon as a motion to quash is denied, the internet service provider (“ISP”) [who initially held back that accused defendant’s contact information from the spreadsheet of names and addresses provided to the plaintiff attorney] will now separately comply with the subpoena as to that John Doe Defendant who filed the motion to quash and lost. Think of this as the ISP sending that defendant’s contact information in a FedEx package to the plaintiff attorney stating, “this is the guy who filed the motion to quash and lost.”
Isn’t it illegal for the ISP to hand out my information? Can I sue my ISP if they comply with the subpoena?
This is actually an interesting topic which I first researched many years ago. The answer is that it depends on whether the federal judge in your case considers the ISP to be under the rules of the Cable Act or not. You would think this is an easy answer, “yes or no, does an internet service provider fall under Title II of the Communications Act of 1934?” but judges in the bittorrent copyright infringement cases have had different opinions of this over the years.
Unrelated to the very muddy area of under which Title of the Communication Act do ISPs fall, this issue has become relevant to our Cashman Law Firm, PLLC practice in defending bittorrent defendants. The reason for this is that a cornerstone part of our strategy is not only understanding the personality and proclivities of the plaintiff attorney (will he name and serve, what are his motivations, etc.), but also to understand how each federal judge sees the validity of the bittorrent-based copyright infringement cases. Judges who quote a certain set of case law (which places the ISPs in the context of being under the Cable Act) or who quote Arista Records LLC(sorry for the Wikipedia link) are usually plaintiff / copyright holder friendly. Those that do not are more “John Doe” Defendant friendly.
Anyway, in 2011, I once looked into suing an ISP for disclosing the identity of a John Doe Defendant, and I was hit with a wall of messy, disorganized law with inconsistent case law rulings on this topic (whether ISPs fall under the Cable Act, whether they are to be considered under Title 2 of the Communication Act, or under some other classification). In short, even if I were successful, in the end, the defendant would have only had damages of $1,000, so it made no sense to fight the lawsuit (the time alone to file it would have cost the defendant the slap-on-the-wrist money he would have made from being right). Anyway, just a fun tidbit.
The plaintiff attorney’s response to a motion to quash
Historically, the plaintiff attorney who sees an accused John Doe Defendant file a motion to quash will claim that the defendant lacks “STANDING” to file the motion to quash.
He will claim that the John Doe filing the motion to quash was never named and served in the lawsuit (and might never be named and served). They will point out to the court that the purpose of the “JOHN DOE” placeholder, by definition, is that this is an unnamed defendant. In order to determine who the actual defendant-to-be-named is in the lawsuit, they need the subscriber’s identifying information to determine whether this subscriber was the downloader or not.
[A plaintiff attorney deciding to “NAME AND SERVE” a defendant is outside the scope of this article. For more information on what to do when you are named and served, click here.]
As a result, federal judges sometimes buy this argument and they deny the motion to quash, or they find some other justification to deny the motion to quash.
A quick comment about the personalities of the plaintiff attorneys who represent the copyright holders:
Plaintiff attorneys / “copyright trolls” have a bad reputation because they have been known to incorporate their personal hurt feelings and egos into the prosecution of their client’s cases.
The purpose of a “copyright troll” / bittorrent-based copyright infringement lawsuit is to extract as many multi-thousand dollar settlements as possible in return for the $400 filing fee their client paid to file the lawsuit. Most of these attorneys work on a commission basis, so the time they spent “fighting” the case is court is wasted time.
When a defendant files a motion to quash, this forces the plaintiff attorney to oppose the motion to quash. Following most oppositions comes a hearing (which sometimes takes up the entire morning, even though the hearing itself on the motion to quash is 5 minutes long).
Thus, any defendant who files the motion to quash ends up with a vindictive attorney who is looking to recoup that time lost in dollars and commissions. This translates into an overly hostile or vindictive attorney who increases the settlement price to “nail” that defendant who filed the motion to quash.
Instead of a motion to quash, what should the first step of defense be?
Great question. Rather than jumping to file a motion to quash, the accused “John Doe” defendant needs to figure out whether he actually downloaded the movie that is the subject of the lawsuit. Next, whether he downloaded it or not, he needs to speak to an attorney to determine what his options are.
Most attorneys who understand that motion to quash attempts are usually unsuccessful will instruct the client to forego filing the motion to quash, and to move right into defending the claims against the client.
Why FIGHTING the case is not the best answer either (even with an innocent defendant).
Lastly, there is always the option to “FIGHT,” or litigate and defend the claims against you, like a hero slaying a “copyright troll” dragon (I did not make up that analogy). However, there are bad attorneys here too, because they really want you to pay them an hourly fee for the next few hundred hours.
Thus, they can spend $20K-$30K on the litigation, and they’ll recoup it from the copyright troll when they win their case, right?? Wrong.
Copyright Troll / Plaintiff Attorneys know EXACTLY WHEN to dismiss an innocent defendant to avoid having to pay attorney fees.
The plaintiff attorneys are very aware of the attorney fees which are awarded to the winner of the lawsuit.
Thus, they know EXACTLY WHEN to dismiss an accused defendant (usually after being named and served, right after discovery (think, depositions, interrogatories, evidence gathering, and questions under oath, etc.) once the defendant establishes that he actually did not do the download).
This means that the plaintiff attorney deprived the wrongly accused “innocent” defendant of ALL the money and months of anguish he paid to his defense attorney.
The defendant is dismissed, taking nothing back for his losses. However, the defense attorney sits there fat and piggish having taken every penny the named defendant had.
Chances are, that attorney never explained to the named defendant that such a dismissal could happen, or else the defendant may have chosen to settle early on (and the defense attorney would have made significantly fewer dollars in fees).
Why FIGHTING based on the argument that the plaintiff attorney has no evidence is also dumb.
This deserves to be its own post, but I’ll get straight to the point. Representing a client who did the download based on the argument that the plaintiff attorney has no evidence is foolish, and here is why:
Even if I were to charge a defendant only $100 to defend the claims against him (if I said pro bono or no fee), and I defended that client on the basis that the plaintiff attorney had no evidence against my client [based on the “snapshot evidence” theory]:
*EVEN IF I AM RIGHT* (that “snapshot evidence” is insufficient to prove copyright infringement), MY OWN CLIENT WHO DOWNLOADED THE MOVIE WOULD BE THE ONLY EVIDENCE THE PLAINTIFF ATTORNEY WOULD REQUIRE TO PROVE COPYRIGHT INFRINGEMENT.
Why? Because after being named and served, there is something called “discovery,” where among other things (such as having a computer forensics expert check the computer for the infringing copyrighted title), my own client would be forced to answer questions under oath, AND ONE OF THOSE QUESTIONS WOULD BE, “DID YOU DOWNLOAD THE XYZ FILE USING BITTORRENT?”
At that point, once your client admits guilt in a deposition, or otherwise under oath, there is nothing to do but to settle. Snapshot evidence at that point becomes irrelevant to whether this defendant downloaded the film.
As one attorney cleverly said it, I believe today on Twitter:
“I can be the most educated, smartest, wizardly genius attorney ever to exist. No legal argument can change the fact that my client downloaded the film.”
IN SUM, INSTEAD OF THE MOTION TO QUASH, CONSIDER YOUR CASE.
Thus, for someone who received notice that their ISP is handing out their information to the plaintiff attorney, don’t worry about the motion to quash. Ask yourself whether you recognize the movie you are accused of downloading, and whether you downloaded or watched the movie without a license (e.g., with bittorrent, or with Popcorn Time, etc.).
CONTACT FORM: Alternatively, sometimes people just like to contact me using one of these forms. If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.
NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.
Any “copyright troll” bittorrent-based copyright infringement lawsuit really revolves around the subpoena which moves from the court to the accused John Doe Defendants. Tracking a subpoena can help an accused defendant understand the timelines of when they can fight, when they can settle, when they can ignore, and whether they are anonymous or not at each step.
A Subpoena is first introduced to the court for approval.
A subpoena is first introduced to the court when the plaintiff attorney files the lawsuit and asks the court for permission to obtain the identities of the various internet users accused of downloading the copyright holder’s movie or copyrighted work.
The Subpoena, once approved by the court, is sent to the ISP.
The federal judge approves the subpoena (usually by rubber stamp), and the subpoenas are then sent to the “abuse” department of the various ISPs (e.g., AT&T U-verse, COX Communications, Comcast, etc.). These ISPs in receipt of the subpoena are ordered to hand over the accused subscriber’s information to the plaintiff attorney. They send a notice to the account holder that a subpoena has been received, and that they are under a duty to comply with the subpoena by a certain date unless the account holder files a Motion to Quash the subpoena before the arbitrary deadline they set (usually the deadline is 30 days from the notice sent to the subscriber).
The ISP forwards the Subpoena to the accused account holder giving him a chance to file an objection with the court.
You (the account holder) receive the notice containing the subpoena, and you learn that you are implicated as a “John Doe” (an unnamed defendant) in the Copyright Holder Corporate Entity v. Does lawsuit. Here, you learn that you can supposedly stop the ISP from handing out your information to the plaintiff attorney by filing an objection with the court, a.k.a. a “Motion to Quash.” At this point, you are still anonymous.
The ISP complies with the Subpoena and hands over your contact information to the plaintiff attorney.
Assuming you do not file the Motion to Quash (there are many articles on this website explaining why you might not do so), the 30-day deadline set by your ISP will lapse, and your ISP will comply with the subpoena. They turn over your information to the PLAINTIFF ATTORNEY (but not to the court or anyone else). You are still anonymous.
At this point, the life of the subpoena is over, as it has served its purpose and the plaintiff attorney is in receipt of your contact information (and whatever other information your ISP was forced to hand over to it). At this point, you are a “John Doe” defendant in the lawsuit, and only your plaintiff attorney knows your real identity. YOU ARE STILL ANONYMOUS at this point (as to the court and the world, as the plaintiff attorney is not going to share your information unless he decides to name and serve you as a defendant in the lawsuit).
Your anonymity expires once the plaintiff attorney realizes that he or she cannot get a settlement from you, and based on their evidence that you are the downloader of their client’s copyrighted movie, they file an amended complaint with the court with your name as a defendant, and they serve you with a copy of the complaint. At this point, you have been “named and served,” and you are no longer anonymous. At this point, you need to decide whether it makes more sense to stand and defend against the claims against you (consider the attorney fees issue), or to negotiate a settlement and amicably step away from the lawsuit.
NOTE: If you choose to fight, be aware of Prof. Matthew Sag’s paper entitled “Defense Against the Dark Arts of Copyright Trolling,” and the considerations surrounding using what are otherwise “valid” defenses to copyright infringement which likely DO apply to your case.
