Motions to Quash in one page (FAQ); when NOT to file a motion to quash.

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?”

“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.

What exactly is a motion to quash?

Simplifying a bit, a motion to quash in the context of a bittorrent lawsuit tells the court that they do not have “PERSONAL JURISDICTION” over you.  In other words, a motion to quash informs the court that the plaintiff attorney / copyright troll filed the lawsuit against you in the *wrong federal court* (and plaintiff attorneys have been forced to reimburse the ISPs for making this mistake).

[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.

There is a long period of time in which the “John Doe” defendant remains anonymous.  During this “John Doe” phase, the anonymity of the accused John Doe Defendant is preserved.  Hiring an attorney at this point (before being named and served) provides you with so many more options than you might have after being named and served.  During this time, your plaintiff attorney has a window in which he can investigate whether each accused downloader actually downloaded the file or not; he purportedly does this in order to determine which John Doe Defendants to name and serve, and which not to name and serve.

Really, this is the bulk of where the bittorrent-based copyright infringement lawsuits spend their time.

During this “John Doe” phase of the lawsuit, the courts issue FRCP Rule 4(m) extensions over and over until the judge forces the plaintiff attorney to name and serve some defendants or stop wasting the court’s time.  During this time, an attorney defending a John Doe Defendant has the opportunity to obtain whatever evidence the plaintiff attorney has on that defendant, and he has the opportunity to explain that it was not the accused John Doe Defendant who did the download.

If the client actually did the download, the defense attorney has other tools at his disposal (e.g., the “no settlement” route, the “ignore” route, or the minimum statutory damages strategy, if the plaintiff attorney names and serves the defendant or otherwise won’t negotiate a settlement).  Obviously, negotiating a settlement for a defendant who actually did the download is usually the quickest way out of the lawsuit (watch out for settlement factory attorneys and so-called defense attorneys who actually represent the copyright holders (“weretrolls”), but it perpetuates the whole copyright troll scheme.

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.

They’ll claim that they are defending your case because the copyright holder does not actually have evidence of copyright infringement (which is true — what they actually have is called “snapshot evidence,” which is not copyright infringement).  They will also explain that copyright law gives the prevailing party (the “winner”) the attorney fees they paid to their attorney.

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.).

Whether the answer is yes or no, don’t wait.  Hire an attorney, explain your situation, and let the attorney either 1) convince the plaintiff attorney that you did not do the download or will not otherwise settle (a.k.a., the “no settlement” representation), or 2) have the attorney settle the claims against you.

This time while you are an “anonymous” John Doe is precious to you; don’t squander it.

Fighting (defending the claims against you in litigation) only makes sense when 1) you understand that EVERYTHING YOU PAY YOUR ATTORNEY TO DEFEND YOU WILL BE LOST, but you do not want to give in and settle the claims against you, and 2) when you want your attorney to file an answer, admit guilt, and argue $750 minimum statutory damages (when you did the download and the plaintiff attorney is unwilling to settle or negotiate fairly).

All other times, one of the “ignore” routes or “settle” route is the more economical approach.

THIS HAS BEEN A LAWSUIT-NEUTRAL ARTICLE WRITTEN FOR THE TORRENTLAWYER UNIVERSITY.

FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your matter, click here.  Lastly, please feel free to e-mail me at info@cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

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.

 

The life of a subpoena, and at what point you are no longer anonymous.

TIMELINE: ISP SUBPOENAS AND ANONYMITY

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.  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.

The exact moment your anonymity expires.

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.

[CONTACT AN ATTORNEY: If you have a question for an attorney about your lawsuit and options on how to proceed, you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

ISP Subpoena Timeline & Anonymity Timeline

Malibu Media Anonymous Settlement is a misnomer.

MALIBU MEDIA ANONYMOUS SETTLEMENTS, BUYER BEWARE.

The purpose of this article is to specifically discuss the prospect of a Malibu Media Anonymous Settlement. A Malibu Media lawsuit targets users based on bittorrent activities tracked over a long period of time. Malibu Media copyright infringement lawsuits are filed with a federal court, Malibu Media subpoenas are sent to ISP subscribers, and after realizing that filing a motion to quash may or may not be the best option, deciding whether to negotiate a settlement or to fight becomes the main consideration.

Malibu Media settlements themselves (not even considering a Malibu Media anonymous settlement, as we will discuss below) are very expensive — not because they ask for a lot of money for the bittorrent download of one X-art adult film, but because they ask for the settlement of EACH AND EVERY ONE OF THE MALIBU MEDIA MOVIES YOU MAY HAVE DOWNLOADED OVER THE COURSE OF YEARS.  Thus, instead of asking for a settlement of, say, $3,500 for the download of one copyrighted video (as other copyright holders do), they’ll ask for a settlement of ALL 50 MOVIES they claim you downloaded over the last three (3) years.  This article will go into the various pitfalls a defendant may face when being lured into a Malibu Media anonymous settlement.

NOTE: BEFORE READING THIS ARTICLE: If you have not already done so, and you are implicated as a John Doe in a Malibu Media, LLC lawsuit, read these first:
1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ]

2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements

FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

Malibu Media’s list of “movies infringed” is often INCOMPLETE (and for a reason).

If you choose to fight and defend the claims against you, Malibu Media subpoena lawsuits have ‘slick tricks’ built into their lawsuits.  They file each lawsuit alleging copyright infringement of only one (1) video, and they list (for example,) the fifty (50) videos they claim you downloaded over the years.  However, they hold back information from the court and they do not list the newest X-Art videos you have downloaded in the recent months.  Thus, if the lawsuit was filed in July, 2017 they’ll only list downloads you participated in until February, 2017.  This leaves all of the Malibu Media downloads you participated in between February 2017 – July 2017 off of the lawsuit.

Why would they do this?  Because they know that when you start fighting your case, you might dispute a number of their claims.  You might even go line-by-line and claim that they did not follow the copyright laws in protecting their rights (e.g., Malibu Media has consistently fudged the ‘publication’ requirement, as I have fought with them on this topic in the past).  Even if you tried to negotiate a Malibu Media anonymous settlement, they still anticipated a way to trick you (more on this “John Doe, subscriber having IP address XYZ” issue below).  However, whether you are right or wrong, they always keep “extra ammunition” of other Malibu Media, LLC (X-Art) titles you downloaded as a threat against you fighting them on the merits.  For example, they might say “If you argue that this list is not accurate, we actually have many more titles we believe you have downloaded — we can list these too if you would like.”

Obviously it is more complicated than this, but point being, I have seen that Malibu Media LLC lawsuits always keeps some set of information ‘off of the table,’ and they reserve this information to gain additional leverage when an inexperienced attorney tries to fight them on the line-by-line details of their case (which, by the way, is often flawed or contains copy-and-paste mistakes from other lawsuits).  This creates a dangerous situation for the accused defendant who gets lured by his attorney into a Malibu Media anonymous settlement.

Malibu Media anticipated anonymous settlements and built in a way to re-sue defendants who settled (or, re-approach them and ask for more money).

Now as far as negotiating a Malibu Media anonymous settlement, Malibu Media has been ‘slick’ here too.  Their lawsuits do not implicate you, a “John Doe” defendant, who has had many IP addresses over the past few years.  Rather, they implicate only “John Doe, subscriber assigned IP address 172.2.51.244,” a John Doe defendant who has been assigned a specific IP address on one day.

SPOILER: The Malibu Media anonymous settlement settling a John Doe case (no IP address specified) is different from a Malibu Media anonymous settlement settling a John Doe, subscriber assigned IP address XYZ case.

IP addresses are assigned to internet users when their router connects their computer to the internet.  That IP address does not belong to that internet user; rather, it is “leased” to that internet user for a limited time, usually 24 hours, 48 hours, or until they reboot their modem or otherwise obtain a new IP address.  Thus, the IP address you have today might not be the same IP address you had yesterday, and so on.  Now IP addresses are pulled from a limited pool of addresses, so a particular internet service provider (“ISP”) might assign the same IP address to a customer for a few days in a row, but that IP address does not belong to that internet user.  If it did, it would be called a “static IP address” which is significantly more expensive than the residential “dynamic IP addresses” leased to residential ISP customers.

Why is this relevant to you, the person behind the John Doe, subscriber assigned IP address 172.2.51.244 title?  Because IF you settled anonymously, you would be settling as John Doe, subscriber assigned IP address 172.2.51.244, and not as the John Doe Defendant having had many IP addresses leased to him.  Thus, Malibu Media, LLC could easily take your $12,000 settlement payment, say thank you, and then sue you again under a different “John Doe, subscriber assigned IP address [SOMETHING ELSE]” for this same set of movies allegedly downloaded.  If you settled anonymously, your attorney would have ‘unwittingly’ opened you up to this problem, because John Doe subscriber assigned IP address X is a different fictitious legal entity than John Doe subscriber assigned IP address Y.  This sounds like semantics, but buyer beware.  Doing this wrong can open you up to being solicited for another settlement for downloads that were done by “another John Doe subscriber.”

In sum, beware of the settlement factory attorney who tries to convince you to settle the claims against you “anonymously.”  In a Malibu Media, LLC case, doing so is simply reckless.

Malibu Media anonymous settlement “price gouging.”

Further, negotiating a Malibu Media anonymous settlement gives the Malibu Media copyright troll attorneys an opportunity to price gouge their settlement prices.  Why?  Because an attorney who comes to them asking them to settle anonymously (without disclosing to Malibu Media the identity of the defendant) prompts the Malibu Media attorney to inquire why that defendant wants to settle anonymously.  “What does he have to hide?,” they ask.

Immediately upon learning that the accused defendant wants to settle anonymously, they recognize that the defense attorney has lost all leverage in negotiating the settlement price, and they’ll “spike” the cost of the settlement.  “Anonymous settlements come at a price,” they may say.

Malibu Media anonymous settlement
geralt / Pixabay

Attorneys Advocating “Anonymous Settlements” are Deceiving You.

Thus, it is important to understand the mechanics of a settlement before jumping to ask for an anonymous settlement.  What most accused Malibu Media defendants do not realize is that the settlements ARE ALREADY ANONYMOUS [with minimal tweaking] without the defendant having to ask for it.  A diligent attorney will negotiate a confidentiality clause into the settlement agreement (or strengthen one that is already in their boilerplate settlement agreement) to prevent their attorneys from disclosing the identity of the defendant with anyone.

This means that your attorney can (and should) put your name in the settlement agreement itself.  This avoids the entire John Doe, subscriber assigned IP address [SOMETHING] issue, because it is actually the real person (not the fictitious John Doe legal entity having a particular IP address) who is settling.

Rather than taking the effort to actually negotiate the terms of the agreement, your settlement factory attorney will try to convince you that you won’t suffer if you try to settle anonymously.

 [This not only alleviates them of the need to negotiate the terms of the agreement, but it also allows them to use their “turn key” boilerplate e-mails, which the plaintiff attorneys (who have already agreed to a pre-arranged inflated settlement price) already know and recognize, so that they can ‘spike’ the settlement amount, gouge the settling defendant, and charge higher prices.  I won’t go into the dishonest attorney issue, kickbacks, etc., as I have written about these issues before.]

Once an accused Malibu Media defendant realizes that it is okay to allow his attorney to put his name in the settlement agreement, at that point, the Malibu Media settlement agreement itself covers 1) ALL PAST ACTS OF COPYRIGHT INFRINGEMENT regarding 2) ALL OF MALIBU MEDIA’S TITLES, and based on the wording of the CONFIDENTIALITY CLAUSE in the agreement the settlement truly becomes a “Malibu Media anonymous settlement.”

Let’s look into this one level deeper, just to be sure that we have also solved the other ‘slick tricks’ Malibu Media lawsuits have built into their cases.

1) “ALL PAST ACTS OF COPYRIGHT INFRINGEMENT”

Because the settlement agreement containing the name of the accused defendant (and not the so-called ‘anonymous’ fictitious John Doe entity), the settlement will cover “ALL PAST ACTS OF COPYRIGHT INFRINGEMENT.”  This means that the settlement will cover even those downloads that Malibu Media, LLC purposefully “left out” from the list of infringements filed with the lawsuit.  Further, the Malibu Media settlement agreement WILL EVEN THOSE DOWNLOADS MADE BY A “John Doe, subscriber assigned IP address” HAVING AN IP ADDRESS WHICH IS DIFFERENT FROM THE “John Doe, subscriber assigned IP address” IMPLICATED AS THE DEFENDANT IN THIS CASE.

In other words, by negotiating the terms of a Malibu Media settlement, but having the confidentiality clause protect the client’s identity, the settlement agreement having the client’s real name on it will not only be a true Malibu Media anonymous settlement, but it will also cover any other fictitious “John Doe” entity that could have downloaded any of Malibu Media movies, ever.

2) “ALL OF MALIBU MEDIA’S TITLES”

Malibu Media settlement agreements used to be very specific as to which specific Malibu Media titles were being settled, and the settlement used to cover ONLY THOSE TITLES and no other titles allegedly downloaded.  This was back when the Patrick Collins, Inc. v. John Does 1-1000 cases were still being filed.

Immediately we recognized that this limitation of the scope of the agreement to ONLY THOSE KNOWN TITLES DOWNLOADED exposed the client to multiple lawsuits for 1) Malibu Media movie titles that Malibu Media ‘slickly’ left out of their list, or 2) Malibu Media titles which their Guardaley investigators missed.  Thus today, when we negotiate a Malibu Media settlement, the settlement necessarily includes ALL PAST ACTS of copyright infringement FOR ALL OF MALIBU MEDIA’s MOVIES.

In sum, when dealing with a copyright troll such as Malibu Media, LLC, and you see that they do something innocuous such as changing the lawsuit names from “Malibu Media, LLC v. John Doe” to “Malibu Media, LLC v. John Doe, subscriber assigned IP address 214.42.955.8,” realize that THEY HAVE DONE THIS FOR A REASON.

What else can you tell me about the Malibu Media cases?

[2017 UPDATE] The best way to learn about Malibu Media, LLC is to read what happened to them as it happened.  The list of stories below (in the order I listed them) tell the Malibu Media story in a way that you will understand them.


FOR MORE INFORMATION ABOUT MALIBU MEDIA, LLC:Again, if you have been implicated as a John Doe defendant in a Malibu Media, LLC lawsuit, there are TWO (2) main articles you should read immediately:

1) “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ],” and then

2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements.”

FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info[at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

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.

Venice PI LLC (not so “new” copyright troll) filing in select Carl Crowell local counsel courts.

There is a “new” copyright troll filing lawsuits with a fervor across the US named “Venice PI, LLC” (more on the word “new”; more on “across the US”).  The Venice PI lawsuits all claim $150,000 copyright infringement damages for the illegal download of the “Once Upon a Time in Venice” movie starring Bruce Willis.  ISPs are sending notices to their subscribers informing them that a Venice PI subpoena requesting their identity has been provided to them, and that they are under an order signed by a federal judge to comply, unless the subscriber files a “motion to quash” the subpoena.

ISPs sending the subpoena notices to its subscribers informing them about the Once Upon a Time in Venice movie lawsuit include CenturyLink, Comcast Xfinity, Hawaii Telecom, Optimum Online, Verizon Fios, and Time Warner Cable, depending on where you live.

As of this evening, I see lawsuits filed as early as 6/28/2017 and as recent as 7/18/2017. Once Upon a Time in Venice movie lawsuits are being filed in Texas, Indiana, New York, North Carolina, Oregon, and Washington.

…Where have we seen those list of states before?!?

Already, without even looking, I can already see based on where the lawsuits are filed that this is yet one more “common troll” set of lawsuits masterminded by Carl Crowell and his RIGHTS ENFORCEMENT entity. I bet you if I looked up the RIGHTSENFORCEMENT.com website, I’d see the “Once Upon a Time in Venice” movie listed there. Let’s look. …Yup. Bottom right, LSD style.

venice-pi-subpoena-once-upon-a-time-in-venice-movie-lawsuit Venice PI

Personally, for a Once Upon a Time in Venice movie lawsuit, I would prefer something less noisy, but you’re not reading this for my aesthetic preferences.

Point being, we are dealing with Carl Crowell and his local counsel in the various states.  This means that we know not only what the lawsuits will look like (as far as which judge will allow what), but we know the plaintiff attorney who has sent the subpoenas, and their proclivities.  This means that we know which attorneys are squeamish in naming and serving defendants, which are comfortable taking the lawsuit straight into discovery, and which are “quick on the trigger,” (think, the train whistle blows before the train has left the station) meaning, which attorneys will get him or herself into trouble with a judge by not following the rules, and as a result, names and serves every John Doe Defendant.

This historical knowledge of who has done what is one reason to hire an attorney, but knowing which way to approach the lawsuit based on the proclivities of the attorney filing the lawsuit is another reason you hire an attorney.  In short, we all know that the options are FIGHT, NO-SETTLE REPRESENTATION, SETTLE (without describing each option, as I’ve done this before), and we all know that for a defendant who did not do the download, I recommend one set of options, and for someone who did do the download, I recommend another set of options.  Don’t be fooled — it’s not black and white. [SPEAK TO ME if you want my opinion on your particular case.]

Now for those who want to settle, we already have an idea of what Venice PI settlement amounts each attorney will likely ask for (their asking prices), and based on the other lawsuits filed by these attorney, we have a good idea of what settlement amounts Venice PI, LLC will accept, if you decided to settle in the first place.  Again, there is the no settlement representation, where you have me keep an open line of communication with the plaintiff attorney to demonstrate to him/her why you did not do the download, and there is also a “no settlement letter” which I write for innocent clients to stop the troll scheme cold.

In short, there is a lot of repeat here because this lawsuit contains a lot of repeat from what we’ve seen in the past with the ME2 Productions (Mechanic:Resurrection) movie lawsuits, the UN4 Productions (Undisputed 4) movie lawsuits, the Headhunter LLC (A Family Man) movie lawsuits, the WWE Studios (Eliminator) movie lawsuits, the Cook Productions (Mr. Church) movie lawsuits, etc.  Rinse, repeat, rinse repeat.

For those interested in learning more about the Venice PI LLC lawsuits, see the two links below:

Venice Pi (‘Once Upon a Time in Venice’) Movie Lawsuit Page,” written on 7/19/2017, and
All I know about the Venice Pi, LLC (‘Once Upon a Time in Venice’) Movie Lawsuits (FAQ),” written on 7/18/2017.

RECENT CASE HISTORY OF THE VENICE PI SUBPOENA CASES:

VENICE PI ISP subpoenas ordered in the Texas Southern District Court
Venice PI, LLC v. Does 1-16 (Case No. 4:17-cv-02203)

VENICE PI ISP subpoenas ordered in the various North Carolina District Courts

Venice PI subpoena cases in the North Carolina Eastern District Court:
Venice PI, LLC v. Does 1-12 (Case No. 5:17-cv-00337, Case No.5:17-cv-00333)
… v. Does 1-11 (Case No. 5:17-cv-00334)
… v. Doe 1 et al (Case No. 5:17-cv-00340, Case No. 5:17-cv-00339, Case No. 4:17-cv-00089)

Venice PI subpoena cases in the North Carolina Middle District Court:
… v. DOES 1-11 (Case No. 1:17-cv-00611)
… v. DOES 1-18 (Case No. 1:17-cv-00610)

Venice PI subpoena cases in the North Carolina Western District Court:
… v. Does 1-10 (Case No. 3:17-cv-00409, Case No. 1:17-cv-00170)

VENICE PI ISP subpoena ordered in the New York District Courts
Venice PI, LLC v. Doe et al (Case No. 1:17-cv-04076, 1:17-cv-04249, 1:17-cv-04904)

VENICE PI ISP subpoenas ordered in the Oregon District Court
… v. Doe-73.96.114.240 (Case No. 3:17-cv-01002)
… v. Doe-71.59.242.118 (Case No. 3:17-cv-01001)

VENICE PI ISP subpoenas ordered in the Indiana Northern & Southern District Courts
… v. Doe 1 et al (Case No. 2:17-cv-00284, Case No. 2:17-cv-00285, Case No. 1:17-cv-02274, Case No. 1:17-cv-02328)

VENICE PI ISP subpoenas ordered in the Colorado District Court
… v. Doe 1 et al (Case No. 1:17-cv-01664)

VENICE PI ISP subpoenas ordered in the Hawaii District Court
… v. Doe 1; et al. (Case No. 1:17-cv-00335)

VENICE PI ISP subpoenas ordered in the Washington Western District Court
Venice PI LLC v. Doe 1 et al (Case No. 2:17-cv-01076, Case No. 2:17-cv-01075, Case No. 2:17-cv-01074, Case No. 2:17-cv-00988, Case No. 2:17-cv-00990, Case No. 2:17-cv-00991)

[CONTACT AN ATTORNEY: If you have a question for an attorney about the Venice PI subpoena-based cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your Venice PI subpoena, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

 

RIGHTSENFORCEMENT – New Movie Titles (July 2017 Update)

RIGHTS ENFORCEMENT still obtaining new movie company copyrights to “enforce.”

Yesterday, while researching the new Headhunter, LLC North Carolina bittorrent-based copyright infringement cases, I checked back on Carl Crowell’s  RIGHTSENFORCEMENT.com website to look to see whether “A Family Man (2016)” belonged to Crowell’s “common troll” entity, and I was surprised to see that  a whole slew of new movies are now listed on their “client” list.

To learn more about RIGHTS ENFORCEMENT and everything I know about them to date, click here.

New RIGHTSENFORCEMENT.com Movies

NOTE: The last time I wrote about RIGHTS ENFORCEMENT and Carl Crowell’s new production company clients was in the “RIGHTSENFORCEMENT, New Movie Lawsuits” Article, written on 4/28/2017.

Here is a list of the new movies I’ve “spied” on their website:

july-rightsenforcement-new-movie-copyright-trolls-1

  • This Beautiful Fantastic
  • Black Butterfly
  • Rupture
  • In Dubious Battle
  • HopeLost
  • Beyond the Sun
  • Arctic Justice (Thunder Squad)
  • All Road Lead to Rome

july-rightsenforcement-new-movie-copyright-trolls-2

july-rightsenforcement-new-movie-copyright-trolls-3

july-rightsenforcement-new-movie-copyright-trolls-4

  • Playing it Cool
  • The Company You Keep
  • The Destination
  • Secret Scripture
  • Once Upon a Time in Venice,

…AND OTHER MOVIE TITLES I HAVE ALREADY WRITTEN ABOUT.

What does this mean to an internet user who has downloaded or streamed this movie using bittorrent, Popcorntime, and/or some other “free” streaming service?

What this means is that they are hard at work contacting production companies / copyright holders for newer movies (a.k.a., “floppers) which have not done so well in the theaters.  They convince these companies to license the rights to “enforce” that movie company’s copyrights (think, sue in a “copyright troll” lawsuit looking for settlements).  Then they have their local counsel file “John Doe” lawsuits in select federal courts (where the judges are friendly to them, or where the lawsuits are otherwise profitable).

What will happen to me if I have been caught downloading one of these films?

Honestly, at the moment, likely nothing, at least not yet.  There are two ways that Carl Crowell and his team of local attorneys across the US have been enforcing their client’s copyrights.

  1. By sending a DMCA notice directly to the accused downloader through the ISP.  Here, the DMCA notice directs the accused downloader to visit the Rightsenforcement.com website, and pay a settlement for each title allegedly downloaded or streamed using bittorrent, Popcorntime, and (yes, I have heard about this too, but I do not yet understand the mechanics of it), KODI on an Amazon Fire TV Stick.
  2. By filing a copyright infringement lawsuit for $150,000 statutory damages against a set of “John Doe” defendants who were each accused of uploading and/or downloading a particular movie using bittorrent (or an app like Popcorntime which still uses bittorrent to stream movies to its users).

What is the relevance that this list of movies is changing?

The fact that the list of movies is changing means that there are now new copyright holder production companies who have “signed on” to the business model of copyright trolling.  Politics and policy aside, this means that the copyrights on these movies (and the infringement, or the illegal downloading, uploading, duplication, and/or streaming of these movies without a license) will be the subject of future lawsuits.

If you look lower down on the RIGHTSENFORCEMENT.COM client list, you will see titles such as “Dallas Buyers Club,” “Mr. Church,” “The Cobbler,” “Cell,” “Fathers and Daughters,” “I.T.,” “Mechanic: Resurrection,” “Septembers of Shiraz,” “Survivor,” “Automata,” “London Has Fallen,” “Criminal,” “Eliminators,” and more recently, “Undisputed 4,” and “A Family Man.”  Each of these movies have been (and continue to be) the subjects of copyright infringement lawsuits across the federal courts in the U.S.

Expect these new movies to be subjects of coming lawsuits as well.

North Carolina Headhunter Subpoenas Are Due On 8/5.

North Carolina Headhunter Subpoena-based Cases

In June, 2017, our Cashman Law Firm, PLLC had its first glimpse of the North Carolina Headhunter, LLC subpoenas.  Seeing their connection to Carl Crowell’s RIGHTS ENFORCEMENT company, we immediately created a Headhunter Productions FAQ page which addressed the NC Headhunter subpoenas.  The ‘copyright troll’ attorney who filed the NC Headhunter cases is Kathleen Lynch (“Kathleen Maher Lynch”), of Lynch Van Sickle, PLLC in Cary, North Carolina.  If this is the first time you are seeing her law firm’s name and you do not recognize a copyright troll, you are not looking carefully.

Now the name “Kathleen Lynch” might not mean anything to you yet, but if you look at her “Lynch Van Sickle, PLLC” law firm, this might jog your memory of R. Matthew Van Sickle (a.k.a. Ross Matthew Van Sickle) of the I.T. Productions North Carolina lawsuits.  The new law firm name is slightly different (Van Sickle Law, PC [then] vs. Lynch Van Sickle, PLLC [now]), but the ugly troll rears his head.  In other words, looking at Van Sickle’s involvement in this new copyright troll, we must suspect that we are dealing with a RIGHTS ENFORCEMENT copyright troll, and… [checking Carl Crowell’s RightsEnforcement website] vwallah!

A Family Man, Headhunter, LLC ISP subpoena lawsuit | Notice of Subpoena For Records

NC Headhunter Subpoena Cases – This is Wave 1 (July, 2017)

Even though the Headhunter, LLC copyright troll is new and pink, we already understand the strategies of the common troll entity behind the scenes.  Understanding that Matt Van Sickle is Kathleen Lynch’s partner in these lawsuits, now we have an idea of how these cases will unfold because we know the proclivities of the copyright troll lawyers behind the scenes.

We are suggesting that those accused of being a John Doe Defendant in any of the NC Headhunter cases to read the Headhunter Productions Subpoena FAQ, which we posted on our law firm’s website.

[CONTACT AN ATTORNEY: If you have a question for an attorney about the Headhunter, LLC cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you canset up a free and confidential phone consultation to speak to us about your Headhunter, LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

Why do we believe a common troll entity is behind the new Headhunter, LLC cases?

[RECAP: Seeing Matt Van Sickle’s name, I immediately realized that we were likely dealing with a common troll entity.  It took 5 seconds to visit Carl Crowell’s RightsEnforcement.com website and see that the “A Family Man” movie was explicitly listed as one of their clients.  This confirmed my suspicion that we were dealing with yet one more common troll entity set of lawsuits.]

I understand that a common troll entity licenses the rights from movie production companies to “enforce” the copyrights for that company.  Here, they approached the production company who filmed and copyrighted the “A Family Man (2016)” movie, and they licensed the rights to enforce (think, sue) the copyrights owned by this production company.  Hence the Headhunter settlement extortion scheme lawsuits were born.

Where are we in the timeline of the Headhunter, LLC cases?

The first wave of Headhunter, LLC cases were filed in June, 2017.  North Carolina federal judges appear to have rubber-stamped these new lawsuits, just as they have done with past bittorrent-based copyright infringement cases.

Headhunter attorney Kathleen Maher Lynch (armed with orders from the NC federal judges) sent subpoenas to AT&T U-verse subscribers, and AT&T subpoena notices (called “Notice of Subpoena for Records”) were sent to the ISP’s subscribers who were implicated in the NC Headhunter lawsuits.  These subpoena notices were all sent by AT&T’s “GLOBAL LEGAL DEMAND CENTER.”

NEXT: NC HEADHUNTER, LLC SUBPOENAS DUE ON AUGUST 5TH, 2017.

*The first wave of NC Headhunter, LLC subpoenas ALL appear to be DUE IN AUGUST, 8/5.*

This means that unless an accused defendant wishes to file a motion to quash the subpoena, AT&T is under a duty to hand over the names of the subscribers accused of being John Doe Defendants in these North Carolina Headhunter, LLC cases.

However, it must be noted that the 8/5 deadline is merely the deadline that AT&T U-verse has given their subscribers.  Chances are that they will provide the names of the subscribers implicated in the North Carolina Headhunter, LLC subpoenas at some future date (as listed on the subpoena itself).

To see the actual deadline by when your AT&T U-verse ISP must hand out your information to the NC Headhunter, LLC attorney, check the subpoena itself included in the packet you received from your ISP.

[CONTACT AN ATTORNEY: If you have a question for an attorney about the Headhunter, LLC cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you canset up a free and confidential phone consultation to speak to us about your Headhunter, LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

RESOURCES:

EVERYTHING YOU NEED TO KNOW IN ONE PAGE ABOUT YOUR HEADHUNTER, LLC “A FAMILY MAN” LAWSUIT AND ISP SUBPOENA (FAQ).

What are your options in defending or resolving claims in a Headhunter, LLC North Carolina-based case?

If you have read this far, you are likely one of the John Doe Defendants in this case, and thus here are your options on how our Cashman Law Firm, PLLC (or any other competent copyright litigation attorney) can help you in this case.

OPTION 1: FIGHT

In this option, your attorney would fight this case on your behalf. Since the Headhunter, LLC scam has been exposed through the past lawsuits of their parent entities, the inherent weaknesses in Kathleen Lynch’s case are now well known. This option is more expensive than the other options, but it is probably the most satisfying option when you win and ask for attorney fees from Headhunter, LLC.

OPTION 2: SETTLEMENT NEGOTIATIONS

Settlement negotiations does not mean that you downloaded the movie or that you are guilty of copyright infringement. Rather, it simply means that you want to pay to have the plaintiff attorney dismiss you from the lawsuit. This option can be used by both ‘guilty’ and ‘innocent’ defendants. While I do not recommend an innocent defendant pay ANYTHING to settle the claims against him, I do not judge defendants when they choose this option.

OPTION 3: “NO SETTLEMENT REPRESENTATION”

This is the discounted “no settlement” representation route that I discussed here. In the span of 2-3 hours, I would consult with the client, send over a letter of representation to the plaintiff attorney (to stop him from contacting the client directly). I would then draft a letter to the plaintiff explaining that my client did not do the download, and that we are not interested in anything other than a walkaway settlement, meaning that my client pays no settlement. The purpose of this representation is to put Kathleen Lynch on notice that my client is not the infringer she is looking for.

OPTION 4: “IGNORE” ROUTE REPRESENTATION

The ignore route is best described as ‘playing chicken.’ I best described the “ignore” route, and how it differs from the “no settlement representation” route here. The assumption with the “ignore” route is that Kathleen Maher Lynch is not yet naming and serving defendants in this case, so you would hire our Cashman Law Firm, PLLC to monitor the case for you. We would send over a letter of representation indicating that we are representing you in the case, but we would not engage in settlement negotiations.

The intended client for the ‘ignore’ route is the innocent client that wishes to have a more ‘hands on’ engagement with their case over the “no settlement” representation letter route, where their attorney is actively monitoring the case and having active discussions with the plaintiff attorney. Both ‘guilty’ and ‘non-guilty’ defendants can utilize the “ignore” route, as this option is adjustable based on the circumstances of the client. If Kathleen Lynch decides to start naming and serving defendants, a ‘guilty’ client would likely have me open up settlement negotiations on his behalf, whereas a non-guilty client would instruct me to not settle and adhere to the ‘ignore’ strategy. Obviously getting named and served while in this strategy would be cause to decide whether to shift strategies to the “fight” or “settle” strategy, which is fine.

OPTION 5: ARGUE “MINIMUM STATUTORY DAMAGES” REPRESENTATION

I discussed the “argue minimum statutory damages” representation option in this article. The purpose of this option is to take the settlement negotiations away from a misbehaving plaintiff attorney. Instead of negotiating a settlement (where the plaintiff is asking for too much money), we would file an answer with the court admitting infringement, and we would then make the case for the judge to award minimum statutory damages of $750.

The intended client for the “minimum statutory damages” representation route is a client who did the download and either does not want to go through settlement negotiations, or who wants to take settlement negotiations out of the hands of the plaintiff attorney / copyright troll and leave the damages up to the judge to decide. Obviously since we are admitting guilt in this option, it is appropriate for the client to have done the download to use this strategy.

However you decide to proceed, if I can be of assistance or answer any questions about your Headhunter, LLC North Carolina case, please let me know.

[CONTACT AN ATTORNEY: If you have a question for an attorney about the Headhunter, LLC cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you canset up a free and confidential phone consultation to speak to us about your Headhunter, LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

LIST OF RECENT NORTH CAROLINA HEADHUNTER, LLC AT&T SUBPOENA LAWSUITS

Below is the list of NC Headhunter lawsuits filed between 6/16-6/30:

Filed within the North Carolina Eastern District Court:
Headhunter, LLC v. Does 1-9 (Case No. 5:17-cv-00310)
Headhunter, LLC v. Does 1-10 (Case No. 2:17-cv-00029)
Headhunter, LLC v. Doe 1 et al (Case No. 5:17-cv-00318)
Headhunter, LLC v. Does 1-9 (Case No. 5:17-cv-00296)
Headhunter, LLC v. Does 1-11 (Case No. 5:17-cv-00325)

Filed within the North Carolina Middle District Court:
HEADHUNTER, LLC v. DOES 1-8 (Case No. 1:17-cv-00545)

Filed within the North Carolina Western District Court:
Headhunter, LLC v. Does (Case No. 3:17-cv-00342)

WHERE ELSE IS HEADHUNTER, LLC FILING THEIR LAWSUITS (OUTSIDE OF N.C.)?

NY:
Headhunter LLC v. Doe-69.124.0.132 et al (Case No. 1:17-cv-04155)
Headhunter LLC v. Doe-173.56.227.169 et al (Case No. 1:17-cv-05314)

OR:
Headhunter, LLC v Doe-71.236.186.17 (Case No. 3:17-cv-00901)
Headhunter, LLC v. Doe-50.53.158.186 (Case No. 3:17-cv-00900)

PA:
HEADHUNTER, LLC v. JOHN DOES 1-11 (Case No. 2:17-cv-02986)
HEADHUNTER, LLC v. JOHN DOES 1-10 (Case No. 2:17-cv-02985)

VA:
Headhunter, LLC v. Doe-73.191.98.246 (Case No. 1:17-cv-00793), and

WA:
Headhunter, LLC v. Doe 1 et al (Case No. 2:17-cv-00987)

[CONTACT AN ATTORNEY: If you have a question for an attorney about the Headhunter, LLC cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you canset up a free and confidential phone consultation to speak to us about your Headhunter, LLC case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

CONTACT FORM: If you have a question or comment 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.

Utah ME2 subpoenas are coming due again (7/14).

Utah ME2 Subpoena-based Cases

In March, 2017, our Cashman Law Firm, PLLC had its first interactions with the Utah ME2 subpoenas.  We created a ME2 Productions FAQ page which addressed the UT ME2 subpoenas.  The ‘copyright troll’ attorney who filed the UT ME2 cases is Todd Zenger (“Todd E. Zenger”), and he works for Kirton McConkie in Salt Lake City, Utah. Any e-mails coming from “tzenger@kmclaw.com,” or calls from his “801-328-3600” phone number (or any 801-328-XXXX phone number should cause you to be wary that you have a UT ME2 copyright troll trying to scare you into settling with him for thousands of dollars.

UT ME2 Productions | Utah ME2 subpoena lawsuits
Screenshot from Carl Crowell’s RIGHTSENFORCEMENT.com website, with Mechanic:Resurrection outlined.

UT ME2 Subpoena Cases – Wave 1 (March, 2017)

We wrote about our first impressions of Todd Zenger and the Utah ME2 cases here:

UTAH ME2 SUBPOENAS FROM CENTURYLINK ARE COMING DUE,” written on April 24th, 2017.

We also directed those accused of being a John Doe Defendant in any of the UT ME2 cases to read the ME2 Productions Subpoena FAQ, which we posted on our law firm’s website.

UT ME2 Subpoena Cases – Wave 2 (July, 2017)

The second wave of cases are now upon us.  All filed in June, 2017, Todd Zenger followed the instructions of the common troll entity (which I understand licenses the rights from movie production companies to “enforce” the copyrights for that company), and filed the second wave of lawsuits in June, 2017.  Utah federal judges rubber-stamped these new lawsuits, just as they did the first set of them.

Todd Zenger sent subpoenas to CenturyLink subscribers (just as he did with the first wave of cases), and CenturyLink subpoena notices were sent to the ISP’s subscribers who were implicated in the UT ME2 lawsuits.

UT ME2 SUBPOENAS DUE TOMORROW

*These second wave of UT ME2 subpoenas ALL appear to be DUE TOMORROW, 7/14.*

This means that unless an accused defendant wishes to file a motion to quash the subpoena, CenturyLink is under a duty to hand over the names of the subscribers accused of being John Doe Defendants in these Utah ME2 cases.

However, it must be noted that the 7/14 deadline is merely the deadline that CenturyLink has given their subscribers.  Chances are that they will provide the names of the subscribers implicated in the Utah ME2 subpoenas at some future date (as listed on the subpoena itself).

To see the actual deadline by when your CenturyLink ISP must hand out your information to the UT ME2 attorney, check the subpoena itself included in the packet you received from your ISP.

RESOURCES:

EVERYTHING YOU NEED TO KNOW IN ONE PAGE ABOUT YOUR ME2 PRODUCTIONS, INC. “MECHANIC:RESURRECTION” LAWSUIT AND ISP SUBPOENA (FAQ).

ME2 UTAH SUBPOENAS FROM CENTURYLINK ARE COMING DUE,” written on April 24th, 2017.

What are your options in defending or resolving claims in a ME2 Utah-based case?

If you have read this far, you are likely one of the John Doe Defendants in this case, and thus here are your options on how our Cashman Law Firm, PLLC (or any other competent copyright litigation attorney) can help you in this case.

OPTION 1: FIGHT

In this option, your attorney would fight this case on your behalf. Since the ME2 scam has been exposed, the inherent weaknesses in Todd Zenger’s case are now well known. This option is more expensive than the other options, but it is probably the most satisfying option when you win and ask for attorney fees from ME2 Productions.

OPTION 2: SETTLEMENT NEGOTIATIONS

Settlement negotiations does not mean that you downloaded the movie or that you are guilty of copyright infringement. Rather, it simply means that you want to pay to have the plaintiff attorney dismiss you from the lawsuit. This option can be used by both ‘guilty’ and ‘innocent’ defendants. While I do not recommend an innocent defendant pay ANYTHING to settle the claims against him, I do not judge defendants when they choose this option.

OPTION 3: “NO SETTLEMENT REPRESENTATION”

This is the discounted “no settlement” representation route that I discussed here. In the span of 2-3 hours, I would consult with the client, send over a letter of representation to the plaintiff attorney (to stop him from contacting the client directly). I would then draft a letter to the plaintiff explaining that my client did not do the download, and that we are not interested in anything other than a walkaway settlement, meaning that my client pays no settlement. The purpose of this representation is to put Todd Zenger on notice that my client is not the infringer he is looking for.

OPTION 4: “IGNORE” ROUTE REPRESENTATION

The ignore route is best described as ‘playing chicken.’ I best described the “ignore” route, and how it differs from the “no settlement representation” route here. The assumption with the “ignore” route is that Todd Zenger is not yet naming and serving defendants in this case, so you would hire our Cashman Law Firm, PLLC to monitor the case for you. We would send over a letter of representation indicating that we are representing you in the case, but we would not engage in settlement negotiations.

The intended client for the ‘ignore’ route is the innocent client that wishes to have a more ‘hands on’ engagement with their case over the “no settlement” representation letter route, where their attorney is actively monitoring the case and having active discussions with the plaintiff attorney. Both ‘guilty’ and ‘non-guilty’ defendants can utilize the “ignore” route, as this option is adjustable based on the circumstances of the client. If Todd Zenger decides to start naming and serving defendants, a ‘guilty’ client would likely have me open up settlement negotiations on his behalf, whereas a non-guilty client would instruct me to not settle and adhere to the ‘ignore’ strategy. Obviously getting named and served while in this strategy would be cause to decide whether to shift strategies to the “fight” or “settle” strategy, which is fine.

OPTION 5: ARGUE “MINIMUM STATUTORY DAMAGES” REPRESENTATION

I discussed the “argue minimum statutory damages” representation option last night in this article. The purpose of this option is to take the settlement negotiations away from a misbehaving plaintiff attorney. Instead of negotiating a settlement (where the plaintiff is asking for too much money), we would file an answer with the court admitting infringement, and we would then make the case for the judge to award minimum statutory damages of $750.

The intended client for the “minimum statutory damages” representation route is a client who did the download and either does not want to go through settlement negotiations, or who wants to take settlement negotiations out of the hands of the plaintiff attorney / copyright troll and leave the damages up to the judge to decide. Obviously since we are admitting guilt in this option, it is appropriate for the client to have done the download to use this strategy.

However you decide to proceed, if I can be of assistance or answer any questions about your ME2 Utah case, please let me know.

LIST OF RECENT “WAVE 2” UTAH ME2 CENTURYLINK SUBPOENA LAWSUITS

Below is the list of UT ME2 lawsuits filed between 6/5-6/21:

ME2 Productions v. Does 1-25 (Case No. 2:17-cv-00526)
ME2 Productions v. Does 1-26 (Case No. 2:17-cv-00525)
ME2 Productions v. Does 1-24 (Case No. 2:17-cv-00523)
ME2 Productions v. Does 1-29 (Case No. 2:17-cv-00547)
ME2 Productions v. Does 1-27 (Case No. 2:17-cv-00576)
ME2 Productions v. Does 1-27 (Case No. 2:17-cv-00625)
ME2 Productions v. Does 1-36 (Case No. 2:17-cv-00624)
ME2 Productions v. Does 1-26 (Case No. 2:17-cv-00626)
ME2 Productions v. Does 1-24 (Case No. 2:17-cv-00662)
ME2 Productions v. Does 1-26 (Case No. 2:17-cv-00663)
ME2 Productions v. Does 1-24 (Case No. 2:17-cv-00664)


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.

Rightscorp settlement attorney considerations for a set of DMCA notices.

I was editing the “All I Know About Rightscorp in One Page” master article, and I got into a discussion about the awkwardness of hiring a Rightscorp settlement attorney because of the disproportionate fees paid to our Cashman Law Firm, PLLC to facilitate and handle the settlement versus the sometime miniscule actual settlement payment that ends up being paid to Rightscorp at $20-30/song downloaded.  Because that discussion took too much space on that article, I cut it and pasted it here.

Rightscorp vs. CEG-TEK Settlement Amounts

When representing a client in a CEG-TEK DMCA settlement demand notice, clients would come with 3-20 notices (and at $300/claim, the settlement asking price was $900-$6,000 before settlement negotiations).  Thus, representing a client and having the client pay our fees made sense.

Not necessarily so with a Rightscorp client who received those same 3-20 notices.  At $30/claim, the settlement asking price would be $90-$600 (before settlement negotiations).  Thus, depending on the number of notices, there could be a disproportionate payment to our law firm to handle what could be a mere $30 settlement payment. 

Why to hire a Rightscorp settlement attorney for even ONE (1) Rightscorp DMCA notice.

As a quick caveat, even for a Rightscorp client who received only one DMCA settlement demand letter (where there is no negotiation), the cost of representing a client is less than it would be for a CEG-TEK case because there is less time spent on the representation.  However, the potential client for this one (1) DMCA notice should be aware of the reasons why they are hiring our firm.

[DISCLAIMER: ***Just To Be Clear*** When I use the phrase “Rightscorp settlement attorney,” in no way do I imply that our law firm has any affiliation with Rightscorp, nor do we represent their interests in any capacity.  The term “Rightscorp settlement attorney” was simply a convenient way to put this article in front of someone who receives a Rightscorp DMCA settlement notice for songs downloaded via bittorrent, and they are trying various search engine keywords to learn which attorney can facilitate an anonymous settlement.  “Rightscorp settlement attorney” seemed to capture the essence of the audience we intended to write for, namely, internet users who want to settle claims of copyright infringement from the Rightscorp DMCA notices they received.]

Why you are not hiring an attorney:

First, benefits a client receives… but these are NOT why they are hiring our firm.  For a Rightscorp matter (e.g., one (1) DMCA notice), you are NOT hiring a Rightscorp settlement attorney to:

1) negotiate the settlement amount (paying an attorney sometimes to negotiate a $30 settlement to possibly $28 or $25 is silly);

2) to settle anonymously (technically, you do not need an attorney to accomplish this goal, as you can purchase a VPN subscription and pay your settlement using a credit card obtained without your name on it).

Why you ARE hiring an attorney (even for one (1) DMCA Notice):

Obviously when we can negotiate the settlement price, we do.  And, the settlement negotiations are negotiated anonymously, and are paid anonymously, meaning that Rightscorp will never learn your identity or that you settled the claims against you.  That way, they will never be able to contact your ISP to shut down your account claiming you are an infringer, and they will never be able to vindictively harm you after a settlement.  However, these are not the reasons you hired our law firm to handle the DMCA notice(s) you received from Rightscorp.

You ARE hiring a Rightscorp settlement attorney to facilitate and handle the settlement in a way that does not admit guilt on your behalf (when needed, we will negotiate the terms of the agreement to suit your circumstances). More importantly, we settle the claims against you in a way that puts Rightscorp, and their BMG Music, Sony Records, and the other music copyright holder clients ON NOTICE that the settlement we processed on your behalf was done by our Cashman Law Firm.

What is the benefit of putting everyone ON NOTICE that you are represented by an attorney?

Putting everyone ON NOTICE means that all future communications will need to come directly through our firm, and not to you.  Should these companies’ lawyers contact the you directly, this would be a breach of the ethics rules which could cost them their law licenses.

Preventing other “games” played against those who settle.

Most importantly, by having a Rightscorp settlement attorney such as myself to settle the Rightscorp claims on your behalf, this prevents any further “games” or activities that may occur (e.g., with asking for additional settlement money for other titles allegedly downloaded, robocalling, or contacting the ISPs to shut down the internet accounts of those who paid a settlement to Rightscorp).

Why $30/song is comparatively better than the alternatives.

In sum, representing a Rightscorp client still takes time, but the fact that the accused downloader is only paying a $30 settlement amount (or some miniscule dollar amount compared to the thousands of dollars which are paid in the movie lawsuits and DMCA settlement demand notices), this should be a happy fact.  Why happy?  Be happy that you were not sued, that you are not dealing with a CEG-TEK or RIGHTSENFORCEMENT ($300/movie title) scenario, and that you were merely caught downloading just a few songs, where the settlement amount will be $30/song.

UN4 Productions movie lawsuits spread with Boyka: Undisputed 4

UN4 Productions ISP Subpoenas sent

I don’t take pleasure in writing this, but there is a new copyright troll on the block named UN4 Productions, Inc. (a Millennium Films company). For the past two weeks, UN4 Productions ISP subpoenas have been going out to internet users informing them that they have been implicated as being a John Doe defendant in the UN4 Productions lawsuit (a.k.a. the Boyka: Undisputed 4 lawsuit). Each lawsuit claims copyright infringement damages of $150,000 for the illegal download or streaming of the Boyka: Undisputed 4 movie using bittorrent, or some other streaming device.

The name Boyka generally means “One Who Terrifies in Battle,” fitting for a gory fighting movie. Boyka: Undisputed 4 focuses on the story of Yuri Boyka, a mixed martial arts fighter.

Boyka: Undisputed 4 Video Trailer (click here)

Why the Boyka: Undisputed 4 ISP subpoenas mirror what we have seen

As soon as I looked into this new copyright troll, I realized that this is a “wolf in sheep’s clothing” copyright troll. The UN4 Productions ISP subpoena that you just received in the mail is coming from the same copyright enforcement entity (think Carl Crowell, or rightsenforcement.com) who just finished sending you bittorrent lawsuits for the ME2 Productions movie lawsuits, the Cook Productionsmovie lawsuits, the I.T. Productions movie lawsuits, LHF Productions movie lawsuits (think, London Has Fallen), and so many others.

Are the Boyka: Undisputed 4 movie lawsuits targeting a particular ethnic group??

The difference here with the Boyka: Undisputed 4 lawsuit is that this pirated movie has been dressed up as an ethnic movie (the previews I saw had arabic subtitles). Think, ME2 Productions, Inc. with no shirt, ripped bloody muscles, adrenaline-pumping punches all in line with the three previous Undisputed 4 movies [Undisputed (2002), Undisputed II: Last Man Standing (2006), and Undisputed III: Redemption (2010]).

UN4 Productions ISP subpoenas sent for the Boyka: Undisputed movie lawsuit
antfrank / Pixabay

“tracking an ethnic-based movie based on a specific nationality”

Again, just in case you did not get my innuendo. The twisted offense here with the Boyka: Undisputed 4 lawsuit is that the  UN4 Productions copyright trolls have developed a new way of catching people — by tracking an ethnic-based pirated movie based on a specific nationality.  They spread a fishnet, monitor the downloads, and vwallah!  They catch bittorrent downloaders with ethnic names. When that defendant claims “it isn’t me who did the download!” the plaintiff attorney just chuckles at Youssef, Oleksiy, Omar, or whichever ethnic name just happened to be the same ethnic group or nationality for whom the movie was made.

UN4 Productions ISP subpoenas sent for the Boyka: Undisputed movie lawsuit

How you can understand the Boyka: Undisputed 4 cases

First of all, at some point this evening, I will be writing a FAQ page so that you can understand what is going on with your Boyka: Undisputed 4 lawsuit.  I will be posting that link here.

To keep things simple, when you think of the UN4 Productions ISP subpoena you just received, or when you think about the Boyka: Undisputed 4 movie lawsuit, just think to yourself, “this is ME2 Productions in disguise. Same rules apply.” With the UN4 Productions lawsuit, the plaintiff attorney lawyers are exactly the same lawyers as with the ME2 Productions, Cook Productions, LHF Productions lawsuits we’ve been seeing for months now.

Thus, you must come to the logical conclusion that the Boyka: Undisputed 4 movie lawsuit is simply another Carl Crowell (RightsEnforcement.com) common troll lawsuit with the same attorney characters we have seen before. We can infer that behind the scenes, the common troll entity (with MPAA’s blessing) approached the real production company of the Boyka: Undisputed 4 movie, and offered to license the rights to monetize the copyright rights on behalf of the Boyka: Undisputed 4 copyright holder (this means, sue defendants, extort multi-thousand dollar settlements from each John Doe Defendant, name some, dismiss some).

How we at the Cashman Law Firm, PLLC understand the Boyka: Undisputed 4 cases.

In sum, because we know the copyright enforcement entity behind the scenes of this lawsuit (think, APMC, or Anti-Piracy Management Company), and because we know the proclivities of the plaintiff attorneys (who names and serves, who settles, etc.) coupled with the federal judges who are assigned the various cases in each federal district court, we can predict with some relative certainty what will happen in each case.

Whether that means filing a motion to quash an ISP subpoena, whether that means we will recommend that we defend your case, or whether we settle the claims against you or simply convince the plaintiff attorneys that it was not you who did the download (no settlement representation), there are a number of options we could take to represent our clients in these cases.

Here are the cases:

UN4 Productions ISP subpoenas ordered in the Colorado District Court
[Most cases assigned to Judge Wiley Y. Daniel]
UN4 Productions, Inc. v. Doe 1 et al (Case No. 1:17-cv-01419, Case No. 1:17-cv-01477, Case No. 1:17-cv-01577, Case No. 1:17-cv-01253, Case No. 1:17-cv-01299)

UN4 Productions ISP subpoena ordered in the Hawaii District Court
… v. Doe 1 (Case No. 1:17-cv-00282)

UN4 Productions ISP subpoenas ordered in the Illinois Northern District Court
UN4 PRODUCTIONS, INC. v. DOES 1-22 (Case No. 1:17-cv-04865)
… v. DOES 1-25 (Case No. 1:17-cv-04868)
… v. DOES 1-21 (Case No. 1:17-cv-04866)
… v. DOES 1-18 (Case No. 1:17-cv-04863)
… v. DOES 1-23 (Case No. 1:17-cv-04861)

UN4 Productions ISP subpoenas ordered in the Indiana Northern & Southern District Courts
UN4 Productions, Inc. v. Doe 1 et al (Case No. 3:17-cv-00473, Case No. 1:17-cv-00257, Case No. 1:17-cv-00228, Case No. 1:17-cv-02037, Case No. 1:17-cv-02070, Case No. 1:17-cv-01710)

UN4 Productions ISP subpoenas ordered in the New York Eastern & Southern District Courts
UN4 Productions, Inc. v. Doe-67.243.172.121 et al (Case No. 1:17-cv-03621)
… v. Doe-173.68.177.95 et al (Case No. 1:17-cv-03278)
… v. Doe-184.152.88.112 et al (Case No. 1:17-cv-04817)

UN4 Productions ISP subpoenas ordered in the North Carolina Eastern District Court
UN4 Productions, Inc v. Doe 1 et al (Case No. 5:17-cv-00278, Case No. 5:17-cv-00286, Case No. 5:17-cv-00317, Case No. 5:17-cv-00232, Case No. 7:17-cv-00109)
UN4 Productions, Inc v. John Doe 1-12 (Case No. 5:17-cv-00238)

UN4 Productions ISP subpoenas ordered in the North Carolina Middle District Court
… v. DOES 1-10 (Case No. 1:17-cv-00502)
… v. DOES 1-10 (Case No. 1:17-cv-00528)
… v. DOES 1-12 (Case No. 1:17-cv-00444)
… v. DOE 1, et al. (Case No. 1:17-cv-00453)

UN4 Productions ISP subpoenas ordered in the North Carolina Western District Court
… v. Does (Case No. 3:17-cv-00295, Case No. 3:17-cv-00297, Case No. 3:17-cv-00315, Case No. 3:17-cv-00329, Case No. 3:17-cv-00282, Case No. 3:17-cv-00284)

UN4 Productions ISP subpoenas ordered in the Ohio Northern & Southern District Courts
… v. Does (Case No. 3:17-cv-01190)
… v. Does 1-11 (Case No. 5:17-cv-01185)
… v. Does 1-12 (Case No. 1:17-cv-00388)
… v. Does 1-11 (Case No. 2:17-cv-00492)

UN4 Productions ISP subpoenas ordered in the Oregon District Court
… v. Doe-76.27.210.76 (Case No. 3:17-cv-00721)
… v. Doe-71.238.54.166 (Case No. 3:17-cv-00722)

UN4 Productions ISP subpoenas ordered in the Pennsylvania Eastern District Court
… v. JOHN DOES 1-9 (Case No. 2:17-cv-02481)
… v. JOHN DOES 1-15 (Case No. 2:17-cv-02768)

UN4 Productions ISP subpoenas ordered in the Texas Southern District Court
… v. Doe 1 et al (Case No. 4:17-cv-01685)
… v. Does 1-13 (Case No. 4:17-cv-01788)
… v. Does 1-13 (Case No. 4:17-cv-01834)

UN4 Productions ISP subpoenas ordered in the Washington Western District Court
[Most cases assigned to Judge Robert S. Lasnik]
… v. Doe 1 et al (Case No. 2:17-cv-00892, Case No. 2:17-cv-00786, Case No. 2:17-cv-00785)

Defense Against the Dark Arts of Copyright Trolling, and its effects.

WHY FIGHT?

The purpose of this post is not to educate, but to share an experience I went through over the weekend.  I spent some time reviewing the various cases where John Doe Defendants have fought back, and the results (even when the attorney did a good job defending the case) were not what I expected.  And then it occurred to me that the Defense Against the Dark Arts of Copyright Trolling unmasks a problem with the bittorrent-based copyright infringement lawsuits — namely, that they will never end.

Defense Against the Dark Arts of Copyright Trolling (“DADA”) = Good & Bad

Professor Sag’s Paper (Defense Against The Dark Arts of Copyright Trolling) was meant to expose the extortion scheme that is behind each of the bittorrent cases we fight every day, and in hindsight, it did a lot of good, but it also did some bad.

Good:

The good it did was that it exposed and confirmed the suspicion that the same players have been (and continue to be) behind each of the lawsuits filed across the US.  Whether it is RIGHTSENFORCEMENT.com (Carl Crowell), APMC, or any of the other names or corporate shell entities working together and using the same German companies (Guardaley) and their so-called “experts” is irrelevant.  The scheme is the same, and this group of individuals who are soliciting movie companies and having them license the rights to sue for copyright infringement is the same, and the list of production companies who are signing onto copyright trolling as an effective method of making money from copyrights is growing.

Bad:

The problem is that Sag’s Defense Against the Dark Arts of Copyright Trolling paper also emboldened the plaintiff attorneys, and it has inspired many of them to “legitimize” these kinds of lawsuits, almost as if “legitimization” is their new mission statement and credo.  Plaintiff attorneys I speak to all now speak about “changing the way so-and-so district court sees our kinds of lawsuits,” as if they have all been coached by the same individual or group working in unison to change how federal courts view copyright infringement lawsuits, in spite of their inherent weaknesses.

How the Defense Against the Dark Arts of Copyright Trolling paper affected the Cashman Law Firm, PLLC

Since Sag’s Defense Against the Dark Arts of Copyright Trolling paper has come out, our Cashman Law Firm, PLLC now offers the following services to accused defendants:

  1. Fight and defend in court
  2. Settle out of court
  3. Represent, but don’t settle (meaning, help the plaintiff attorney understand that my client did not do the download)
  4. “No Settlement” letter

FIGHT AND DEFEND IN COURT:

This is the romantic option.  Have your victory in court and expose these guys for the scheming scum they are.  Vindicate the client, show the world they should not have been selected to be named-and-served defendants in the first place.

SETTLE OUT OF COURT:

This is frowned on by everyone, except the defendant who decides that this is the cheapest option.  Our law firm settles cases too, and in many circumstances we have leverage when negotiating a settlement.  Contrast this with settlement factories (you know who you are), who scare defendants into settling even when they did not do the download.  These settlement factories appear to promise one set of settlements, get the client to pay their volume-based fee, and then hit the defendant with a higher settlement amount claiming it is the client’s fault the settlement was higher (when the ‘deal’ they had with plaintiff attorneys in the first place was this higher ‘premium’ amount they prearranged with the plaintiff attorney).  See here for details.

REPRESENT, BUT DON’T SETTLE:

This is the preferred option for the innocent defendant who did not do the download.  I have called this mode of representation many things over the years, but the point of it is 1) to keep the plaintiff attorney far away from the defendant, 2) to keep an open line of communication between the plaintiff attorney and the defendant, and 3) to monitor the case so that the innocent defendant does not need to worry about the various filings, hearings, and documents that are filed in their case.  The ultimate goal of this “ignore” option is to inform the plaintiff attorney that my client was not the one that did the download, and to help him/her understand this by providing documentation and an open line of communication.  Eventually, the plaintiff attorney will need to decide whether to dismiss my client or move forward against him/her, but this will be based on the evidence, not based on bullying, threats, or coercion.  And if that becomes the circumstances, our firm is prepared to defend the client in the courtroom.

“NO SETTLEMENT” LETTER (as suggested by the Defense Against the Dark Arts of Copyright Trolling paper):  

This is the “no settlement letter” option suggested by Matthew Sag’s paper.  In the Defense Against the Dark Arts of Copyright Trolling, Prof. Sag suggested that the threat to name-and-serve a defendant if they do not settle is a *bluff*.  Counter the plaintiff attorney’s accusation with a denial letter sent by an attorney indicating that no infringement occurred, and that the client will not entertain a settlement.  The total representation should take 2-3 hours at most, but there is no ongoing representation — meaning, our firm is not monitoring the case, we are not interacting with the plaintiff attorney (only minimally, if necessary to substantiate something we wrote in the letter), and we are not spending time additional time arguing with the plaintiff attorney, or going back and forth on the evidence, or arguing the merits of the case — something that can cause the cost of defending a client to skyrocket.  This, according to the paper should provide the innocent defendant enough legal protection to inform the plaintiff attorney that they did not do the download and that they will not settle.[Should the client wish to have a more complete representation, we offer the “REPRESENT, BUT DON’T SETTLE” option, and we offer it as a flat fee service.]

Defense Against the Dark Arts of Copyright Trolling and the various paths of representation.
geralt / Pixabay

Prof. Sag’s Defense Against the Dark Arts of Copyright Trolling paper gave us direction.

I would say that the main benefit derived from Sag’s Defense Against the Dark Arts of Copyright Trolling paper is that the issues surrounding the mass bittorrent cases filed across the US have been defined.  The “lines in the sand” have been drawn, so to speak.  The scheme of the copyright holders has been revealed (I have not discussed the scheme or its details in this article).

We now know that the copyright holders are trying to prove that “snapshot” infringement is copyright infringement, whereas we look to establish that the “substantial similarity” standard of copyright law must be adhered to.  They look to prove that an IP address implicates the account holder while we look to prove that the IP address does not implicate the account holder (just to name a few points).

Sag’s Defense Against the Dark Arts of Copyright Trolling paper has shed a clear light on what case law needs to be established in each of the federal districts across the US.  This will take work, and it will take a number of years before we generate a consensus of law in each federal district.

The Defense Against the Dark Arts of Copyright Trolling paper also gave the copyright trolls direction.

The problem is that when a fraud is exposed, those committing the fraud double-down and get emboldened to prove that their side is right.  The copyright holders have a clear advantage over the defense counsel, as they have hundreds of lawsuits where they spew the same lines in every court trying to sway the judges to their side of the argument.  And, it costs them almost nothing to get their argument before a court.  However, for an individual defendant who hires a law firm like mine, we can only represent the defendants who come to our firm and choose to have us fight the case on their behalf (rather than settle or choose one of the other less confrontational options).

It is no secret that it costs more to defend a case in the courtroom than it does to settle it.  As a result, there are significantly fewer attorneys on our defense side who have the ability to get their arguments in front of the judges.  Rather, we are tasked with doing what is in the “best interest of our client,” and that is often to take active steps to avoid the costs of litigation.  So while we protect our client (one at a time), we are not the heroes who are slaying the copyright troll dragon.  And, while our Cashman Law Firm, PLLC does our best to starve the copyright trolls by avoiding settlements whenever possible (“no settlement” representation), copyright trolls do not require a lot of food to continue growing like a cancer.

The Defense Against the Dark Arts of Copyright Trolling paper’s suggested solution: Attorney Fees

The Defense Against the Dark Arts of Copyright Trolling paper suggested that attorneys such as myself should take my case pro bono (meaning, for free) or at a reduced rate so that we can get our attorney fees from the copyright trolls (those filing the lawsuits) rather than from the client.  His logic was that copyright law (in theory) allows a defendant to recoup attorney fees he paid to his attorney from the other side if he is successful in his defense (or more specifically, when the prevailing party gets a judgement “on the merits” of the case).

The problem is that even if the attorney is successful in fighting the case, the copyright trolls will dismiss their lawsuit against the defendant before he is able to get a judgement “on the merits.”  In other words, they deprive the successful defendant from obtaining attorney fees by dismissing the defendant as soon as they realize he has a winning case.

Counterclaims as a strategy to “lock-in” a copyright troll (to prevent dismissals)

Several accomplished attorneys have filed counterclaims trying to “lock in” the plaintiff attorney / copyright troll into the lawsuit, so that if they try to dismiss the defendant from the lawsuit, the defendant can still proceed on his counterclaims and collect the attorney fees he paid to his attorney when they win the case.  However, as glorious as a strategy as this is — and I credit the attorneys who thought of this strategy (and I am willing to share their names here if they allow me to) — to my own dismay, I have seen this strategy in practice fall on its face in a number of places.

My weekend.

This was the subject of my weekend research — reviewing cases filed across the US where the defense attorney filed a counterclaim against the copyright holder, and watching to see the plaintiff attorney try to squirm out of the counterclaim.  In some places they are successful and in some places they are not.  However, this is the disheartening reality I saw over the weekend — regardless of whether the plaintiff attorney succeeded in “locking-in” the plaintiff with his or her counterclaim, the judge months later still forced the parties to attend a settlement conference, and days later, a stipulation of dismissal was filed with the court indicating that the parties settled out of court.

“After all those months of fighting!” I thought.  I couldn’t believe it, but I saw it with my own eyes.  So, as glorious as it is to fight the case, I still see the cases settling out of court months or years later because neither party is willing to take the case to trial because of the costs involved.

In short, seven years later, the bittorrent lawsuits are still a “game of chicken.”  [Two cars drive at each other head on and full speed, and the first car to swerve out of the way loses.]  The game is still the same.  We’ve just had each side drive the metaphorical “car” deeper into the lawsuits.  Now plaintiff attorneys name-and-serve defendants.  Now plaintiff attorneys force accused defendants into discovery (forcing them to answer questions under oath via interrogatories, depositions, etc.) before dismissing them.  However, in the “olden days,” defendants did not need to pay any attention to the lawsuits.  Now the louses have figured a way to force defendants “neck first” into the litigation, so they are going to spend their hard-earned money either defending themselves or settling.

Defense Against the Dark Arts of Copyright Trolling and "Playing Chicken."
Netsyscom / Pixabay

The Grim Reality — More lawsuits are coming.

In sum, the ‘bad’ that Matthew Sag’s Defense Against the Dark Arts of Copyright Trolling paper did is that it exposed a harsh reality — that unless people fight back, these cases will prevail like a cancer on the court system, and many thousands more will be sued.   He also exposed that although the plaintiff’s case is weak, changing the minds of the judges en masse can only happen if people call the bluff of the copyright trolls and fight them on the merits of the case and oppose being dismissed when they are dismissed from the lawsuit.

If we want to see these cases disappear, we still have to fight the cases.  We need to file answers with the courts, and we need to expose the weaknesses of the cases to the judges.  Eventually, the plaintiff attorney will need to drop Guardaley or improve their tracking capabilities to remove accidentally implicating non-guilty defendants as John Doe Defendants in these cases.  They will need to do a whole slew of things which I can outline in another article when I have the time.  Most importantly, however, the issues surrounding the cases will need to be hashed out *in* the courtroom.  The cases will never go away until this happens.

What I found out this weekend is that even those who fight back eventually settle.  Whether the settlement is “plaintiff takes nothing,” who knows, but the cases all settle.

FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your lawsuit, click here.  Lastly, please feel free to e-mail me at info [AT] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

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.

Motions to Quash ISP Subpoena Letters, Malibu Media Lawsuits, Rightscorp DMCA Settlement Notices, and Helping John Does.