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.]

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.

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.

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