Welcome to the TorrentLawyer Blog, a Cashman Law Firm, PLLC resource. The purpose of this sticky post is to be simplistic and help you to navigate this site (which has 200+ articles on copyright cases we have worked on since 2010). In short, if you arrived at this site, you are facing one of three paths:
1) COPYRIGHT INFRINGEMENT “JOHN DOE” LAWSUITS
You have been implicated as a “John Doe” defendant in a federal copyright infringement lawsuit (or worse, you have been served as a named defendant in one of these lawsuits).
WHAT TO DO NEXT: Click the “Cases We Are Working On” menu option (above), and select the name of your case and/or movie allegedly downloaded.
To make things easier for you, these are the primary lawsuits we are actively working on:
You received a DMCA notice (“Digital Millennium Copyright Act”) accusing you of downloading one or more copyrighted videos or music songs, and they have demanded a settlement claiming that if you do not pay, they will sue you for copyright infringement.
WHAT TO DO NEXT: Click on the “Cases We Are Working On” menu option (above) and select which company has sent you the DMCA Notice:
You are lost, or you do not know where to start. Relax, we are here to help you understand what it is you received from your ISP or in the mail, who sent it, and what is happening to you. Once you have an idea of exactly what is happening, we can then discuss how to respond.
Instead of filing a lawsuit against an accused bittorrent downloader in federal court, Strike 3 Holdings, LLC is asking the Miami Dade County Court to reveal the identity of the owners of the accounts from which the downloading allegedly occurred. There is no claim of copyright infringement nor is Strike 3 Holdings, LLC asking the court for money damages.
Once Strike 3 Holdings, LLC receives the identity and contact information, Strike 3 will likely then threaten a copyright infringement lawsuit in federal court if that defendant does not settle the claims against them by paying them settlement money to the tune of thousands (or tens of thousands) of dollars.
The Florida-based legal mechanism that Strike 3 Holdings is using is called a Pure Bill of Discovery. I saw these years ago when copyright troll attorneys decided to avoid the federal courts and try to solicit settlements out-of-court under the “threat” that they would file a lawsuit if the defendant did not pay them thousands of dollars.
A Pure Bill of Discovery tells the court, “So-and-so IP address was seen downloading my copyrighted film. I want to see whether the account holder is the downloader so that I can sue him in federal court. Please order the ISP to have them give me his contact information so that I can research my claim.” In reality, the request should be “Please order the ISP to have them give me his contact information so that I will demand from him thousands of dollars or else I will threaten to sue him.”
I did not like Pure Bills of Discovery then, and I do not like them now. A Pure Bill of Discovery does not protect the identity of the accused defendant from sleazy attorneys using their contact information to extort them for everything they have.
In the Miami Dade County Florida court, the plaintiff attorneys are Tyler Mamone and Rachel Walker — both Strike 3 Holdings LLC plaintiff attorneys who in the past, filed copyright infringement lawsuits against John Doe defendants in federal courts.
I initially thought these attorneys wanted to avoid the $400 filing fee, but Miami Dade County has a $300 filing fee. Thus, my only guess as to what these attorneys are up to is that they must be trying to avoid the Federal Rules of Civil Procedure and the judge’s scrutiny of their Strike 3 Holdings, LLC cases (to avoid having them ask whether their lawsuits comprise a settlement extortion scheme).
RACHEL WALKER AND TYLER MAMONE, STRIKE 3 HOLDINGS FEDERAL COURT PLAINTIFF ATTORNEYS.
Here, Strike 3 Holdings is not suing only Florida-based defendants. Rather, they are suing defendants from across the country. This is noteworthy, because it shows that they have chosen FLORIDA because of its laws (and the ability to use the Pure Bill of Discovery to circumvent the federal court discovery rules to obtain the contact information of each accused defendant). This is also called forum shopping.
Rachel Walker and/or Tyler Mamone (the plaintiff attorneys) have asked the court to order that each ISP provide the name and address of the ISP subscriber who was assigned the IP address on the date and time when the alleged instance of copyright infringement occurred. Again, they are not asking for money damages — only subscriber contact information.
Which obscure ISPs have been ordered to share their subscribers’ contact information?
ISPs involved in the Miami-Dade County-based Strike 3 Holdings LLC cases include:
Condointernet.net, Clarksville Department of Electricity, Hotwire Fision, Webpass, US Internet, Wave Broadband, Sonic.net, Sail Internet, Consolidated Smart Systems LLC, San Bruno Cable, CenturyLink [not so obscure], and others.
Strike 3 Holdings LLC appears to have already succeeded in their Miami Dade County Florida Bill of Discovery Cases.
Accused defendants are now receiving letters from their ISPs (here, obscure ISPs) telling them that the ISP is under a duty to hand over their contact information to the plaintiff attorney.
Here is my thought:If the accused defendants are already receiving letters, it suggests to me that the courts have starting granting the relief asked for by Rachel Walker and Tyler Mamone.
STRIKE 3 HOLDINGS LLC MIAMI DADE COUNTY PURE BILL OF DISCOVERY TIMELINE.
To date, I count only ten (10) Pure Bill of Discovery lawsuits filed by Strike 3 Holdings LLC against “Unknown Infringers Identified on Exhibit 1.”
However, when I looked at the “Exhibit 1” of each lawsuit, I saw potentially hundreds of defendants hidden inside each case.
This means that this could be the start of Miami Dade state-based copyright trolling on a massive scale. The cases were apparently first filed on 9/23/2019 and the most recent filing is this past Tuesday, 10/29. No doubt more cases will follow.
MIAMI DADE COUNTY COURT LIST OF STRIKE 3 HOLDINGS CASES:
At the risk of boring you with this information, I am pasting a list of the cases, including both the Local Case Number and the State Case Number. The name of each case is the same:
STRIKE 3 HOLDINGS, LLC v. UNKNOWN INFRINGERS LISTED ON EXHIBIT 1
Local Case Numbers: 2019-027829-CC-05, 2019-027599-CC-05, 2019-026368-CC-05, 2019-026371-CC-05, 2019-025653-CC-05, 2019-025655-CC-05, 2019-025662-CC-05, 2019-024463-CC-05, 2019-024467-CC-05, and 2019-024647-CC-05.
State Case Numbers: 132019CC027829000005, 132019CC027599000005, 132019CC026368000005, 132019CC026371000005, 132019CC025653000005, 132019CC025655000005, 132019CC025662000005, 132019CC024463000005, 132019CC024467000005, and 132019CC024647000005.
MY FINAL THOUGHTS ABOUT MIAMI DADE PURE BILL OF DISCOVERY CASES.
In sum, this is not the first time I have seen a Pure Bill of Discovery case, and I have dealt with them in the past. I personally think that states that still have this cause of action are backwards and judges should not allow plaintiff attorneys to use these cases to perpetuate a grand settlement extortion scheme.
I also know that Miami Dade County Court is not the only place these Pure Bill of Discovery cases were filed. There are a few select other courts across the US that a Pure Bill of Discovery was attempted, and the results were the same.
In sum, if Strike 3 Holdings is now trying to avoid the federal courts in order to perpetuate their settlement extortion scheme outside of the federal court’s scrutiny, these cases are about to become much dirtier than they already were.
Defendants: Is the threat to sue for copyright infringement a bluff? No.
As far as options on what to do if you receive a notice from your ISP on this lawsuit — an accused defendant is going to face the threat of a federal court copyright infringement lawsuit in their own state’s federal court if they do not settle.
If they call the bluff of the plaintiff attorney and say “come and sue me,” this is not a deterrent to the plaintiff attorney. The plaintiff attorney will simply sue that individual as a “Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address [INSERT IP ADDRESS],” then once the lawsuit is filed in the federal court, they will threaten to name and serve the defendant if he does not settle the claims against him.
In sum: “I don’t like these Pure Bill of Discovery cases. I do not like them at all.”
If anyone has any questions about these cases, I’d be happy to speak about them further offline.
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.
Kerry Culpepper of Hawaii-based Culpepper IP LLLC has taken a roundabout way of uncovering the identities of Verizon Wireless subscribers who downloaded the Hunter Killer movie using their cell phones. I wanted to spend a moment on how Culpepper did this, because it provides a good follow-up on my 5/3 article about the Hunter Killer Productions Inc. lawsuits.
Hunter Killer Inc v. John Does as a Copyright Infringement Lawsuit
Ordinarily the case would show up on my radar because the plaintiff attorney would file a Hunter Killer Productions Inc. v. John Does copyright infringement lawsuit in a particular federal court (here, the U.S. District Court for the District of Hawaii).
Kerry Culpepper would then ask the court for what is referred to as “expedited discovery,” meaning, he would ask the court to authorize Culpepper to send a subpoena to the ISP. I described this process in detail just days ago in the “How Paul Beik Has Malibu Media LLC Defendants Served” section of the linked article.
This ISP subpoena would ordinarily then force the Hawaii-based ISP to hand over the name of the John Doe defendant(s) accused of infringing the Hunter Killer Productions Inc. copyright holder’s “Hunter Killer” movie.
Judges are aware of the “copyright troll” problem.
I had to ask myself, “why would Kerry Culpepper go through such loops to disclose the identity of the alleged downloaders? Couldn’t he have just filed a Hunter Killer Productions Inc. v. Does 1-20 copyright infringement lawsuit against 20 downloaders like any other plaintiff attorney / copyright holder?
Then it occurred to me: In the list of Hunter Killer Productions Inc. lawsuits filed against defendants, I did not see *any* cases filed in the Hawaii District Court. (Rather, I only saw a few Hunter Killer Productions Inc. cases filed in the US District Court for the Northern District of Illinois).
Could it be that the Hawaii District Court has outlawed Rule 26 “expedited discovery” bittorrent-based copyright infringement cases in their case holdings? If Kerry Culpepper cannot get a federal judge to grant an “expedited discovery” to allow him to send a subpoena to the ISPs [to discover the identity of the would-be John Doe defendants], then the plaintiff attorney has a copyright infringement lawsuit without any known defendants.
Judges across the US have become aware of the problem we refer to as “copyright trolling,” where a copyright holder uses the federal courts to file a copyright infringement lawsuit against a set of unknown defendants. They use the Federal Rules of Civil Procedure (Rule 26) “expedited discovery” tool to unmask the identities of the defendants sued in the lawsuits.
As a result of much abuse and harassment by a number of plaintiff attorneys, some judges have taken proactive steps to DENY the plaintiff attorney’s FRCP Rule 26 “expedited discovery” requests. If this is what is happening in Hawaii, this would in theory prevent Kerry Culpepper from forcing the ISP to hand over the names of the account subscribers (hence, no known defendants to sue).
What is a “MISCELLANEOUS CASE”?
What a BORING name for such an abused type of lawsuit!!!
I have seen lawsuits that look something like “Case No. 1:19-mc-00123” which differ from the civil cases [which look like “Case No. 1:19-cv-00123”]. These “miscellaneous” cases do not formally accuse the defendant of copyright infringement in the form of a complaint, but rather, they function more as a “motion to compel” [to force] a third party (here, Verizon Wireless) to disclose the identity of a would-be defendant.
From a non-lawyer’s eye, who cares whether the plaintiff attorney used a “1:19-cv-12345″ (a “civil” case) to file their lawsuit, or a “1:19-mc-12345″ (“miscellaneous” case) to discover the identity of the alleged infringer. It is the same result — the plaintiff attorney (here, Kerry Culpepper of Hawaii-based Culpepper IP LLLC) acquires the name of the alleged infringer and contacts him or her with the intention of accusing them of copyright infringement.
However it is the BACKHANDED WAY the plaintiff attorney gets his defendants that simply irks me.
What Kerry Culpepper did in Hawaii to force the clerk to issue 512(h) subpoenas to Verizon Wireless
Kerry Culpepper in my opinion is one of the smarter plaintiff attorneys. I have always known this, as his copyright infringement lawsuits were always out-of-the-box.
When dealing with him, Culpepper rarely asked for a settlement outright — rather, he had a roundabout way of explaining that, “…since my client accessed the bittorrent file 530 times over a two-day (26 hour) period to download a full copy of the movie, and that bittorrent swarm shared the movie with 2,930 other bittorrent users over those same 26 hours, judging the discounted cost of a movie at Wal*Mart is $2.99 (in a clearance bin, not $19.99 retail on the shelf), multiply the $2.99 x 2,930 to arrive at a settlement price of $8,760.70.”
In sum, Kerry Culpepper a good mind which he uses to discover methods of suing defendants for profit.
Hunter Killer Productions Inc. and their new defendants.
This brings us to Kerry Culpepper’s latest feat — getting the Hawaii Federal Court to force Verizon Wireless to hand over the names of several defendants WITHOUT EVER FILING A COPYRIGHT INFRINGEMENT LAWSUIT.
In his application to the US District Court for the District of Hawaii entitled “In re Subpoena to Verizon Wireless” (Case No. 1:19-mc-00125), he invokes 17 USC 512(h) to ask the *CLERK* (not a judge, and WITHOUT a lawsuit filed) to issue a subpoena to disclose the identity of an alleged copyright infringer.
Let me say that again. Kerry Culpepper just succeeded in getting the CLERK to issue a subpoena WITHOUT ANY JUDGE ruling on the motion, and WITHOUT NEEDING TO FILE ANY COPYRIGHT INFRINGEMENT LAWSUIT.
Literally, the entire “miscellaneous” lawsuit was:
Doc 1) Application for a 512(h) subpoena,
Doc 2) Judge assigns the case to a magistrate judge (in my opinion, in an “I’m not touching this one,” way),
Doc 3) Clerk issues subpoena. [CASE CLOSED]
KERRY CULPEPPER’S ARGUMENT TO THE HAWAII DISTRICT COURT
Kerry Culpepper’s argument was simple. I am laying it out in points below:
1) DC Circuit said that a 512(h) subpoena can only be issued to an ISP engaged in storing infringing copyrighted materials on their servers. (351 F.3d 1229, 1233 (D.C. Cir. 2003)).
2) Eighth circuit said that a 512(h) subpoena only applies to an ISP that directly stores, caches, or provides links to infringing materials. (393 F.3d 771, 776-77 (8th Cir. 2005)).
Kerry Culpepper noted that neither court mentioned anything about whether a subpoena can be issued to an ISP that acts as a CONDUIT [to allow their subscribers to pass copyrighted content through their servers].
Here is where Kerry Culpepper shows his talents:
Culpepper then commented that the 9th Circuit (which is a higher court which includes and is binding upon the Hawaii District) has not ruled on whether a copyright holder can use a 512(h) subpoena to an ISP that acts as a CONDUIT [to allow their subscribers to infringe copyrighted materials].
He then invoked the recent BMG Rights Management (US) LLC v. Cox Communications Inc., 881 F.3d 293, 300 (4th Cir. 2018) case to conclude that the 9th Circuit (including the Hawaii District Court) would allow such a 512(h) subpoena.
There are some people who operate at such a high level that I get a headache when listening to them. I could strain to understand them, but I wonder whether I would understand them better if I too were high on drugs.
I read the arguments and looked up the references, but I don’t get the jump in logic.
Personally, I think Culpepper confused the court with a logic-based argument, but I believe he jumped to a conclusion that his facts did not support.
However, I’ve heard Culpepper speak — he is a smart dude and he thinks very quickly. Sometimes it is difficult to understand him because he is thinking at levels higher than the average person (here, the average judge) can comprehend.
However, I still think that the judge dropped the ball and did not have the caffeine to oppose Culpepper (NOTE: there was no “defense” counsel to oppose him), and the Hawaii court capitulated.
The end result is that now Verizon Wireless will be complying with the subpoena and providing Culpepper here, a list of 20 defendants who allegedly used their cell phones to view, stream, or download copies of his client’s Hunter Killer movie, and the settlement demands will likely ensue.
If you are a defendant (or you received a letter from Kerry Culpepper asking for settlement money for the download of the Hunter Killer movie using your cell phone), at least now you will understand how he got your name.
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.
Motions to Quash ISP Subpoena Letters, Malibu Media Lawsuits, Rightscorp DMCA Settlement Notices, and Helping John Does.
