News articles claim that attorneys are filing copyright infringement actions against individual defendants for illegal downloads. Should I be scared?

Considering the recent articles online leaked by the attorneys of the Hurt Locker and the Far Cry cases in that they plan on filing against dismissed defendants in their home states, I have been asked whether my opinion regarding the eventual outcome of the cases still in existence has been altered by what is, in my opinion, a public relations media blitz in response to the fall of the Larry Flynt Productions (LFP Internet Group, LLC) lawsuits and similar related suits in the Texas and West Virginia courts.

In short, the mass John Doe copyright download cases have been falling like dominoes — one after the other — and there are too many of them to note. However, as a reaction to these failed cases, there have been a number of “scare” articles leaked to the internet claiming outright lies such as “we were successful in obtaining hundred-thousand dollar judgments against multiple torrent users last year.” This is simply not true. I check the records and filings of many (if not most) of the copyright lawsuits on a regular basis. I have seen many cases get dismissed; I have seen many cases get severed leaving only one John Doe defendant — but I have never seen a judgment against an individual John Doe torrent downloader from these lawsuits.

Of course I must point out that there are a few example cases made by the Recording Industry Association of America (“RIAA”) which I wrote about a few months ago where one woman was handed a $1.5 million dollar judgment for seeding (sharing) over twenty .mp3 music files. In addition, there were the Napster, Grokster, and related cases which lost a few years back. However, as for media companies getting judgments against individual John Doe defendants in these mass copyright infringement lawsuits? I have not seen even one.

However, as per the plaintiff attorneys in these copyright cases, it has always been their position that they intend to go after individuals in their home states. However, if you read my most recent article (towards the bottom), you will see the obstacles they face in going after every one of the individuals dismissed in their previous lawsuits. I have quoted the relevant portion below.

“Now what does this mean for our firm’s clients? In short, all defendants were dismissed and severed. What this means is that if the plaintiff attorneys wish to continue the lawsuit, they will have to file against each of the six thousand defendants individually. They will need to draft complaints specific to each defendant alleging infringement of their client’s copyrights — each one is extremely time consuming. They will have to get admitted (pro hac vice) in the local court in which each defendant lives, or they will have to find local counsel in each state each defendant lives and they will have to hire that local counsel to file the paperwork on their behalf. They will have to learn and follow the local court rules, they will have to pay the filing fees for each defendant (~$350) they sue, and they will have to properly serve each defendant.

Then us attorneys will begin defending the cases, and we will begin conducting discovery and making them attend depositions, answer interrogatories, and prove their case. I would think this would be difficult for them to do with just a few defendants. I can imagine this would be nearly impossible to do with 6,000+ defendants.

But, I’m sure if asked, they will probably post some news article expressing their determination to go after each and every defendant, and I wish them well.” (Emphasis added.)

As a side note the defendants in the above quoted article were not severed, they were outright dismissed. This has ramifications for the plaintiff attorneys and it will affect how they are able to proceed in suing defendants individually.

Lastly, regarding the blitz of articles many of you have been referring to (on arstechnica, on digitalmediawire, etc. — example here) — if you read the news articles carefully, there is no indication that a new wave of individual lawsuits are being filed. (Obviously taking note of a few “test the water” cases, one example described here). These articles, along with their source article on CNET News state that the owner of Dunlap, Grubb & Weaver is “driving to the court right now…” Very exciting and newsworthy, but no proof of a new and pervasive business model of filing against individual defendants.

I have no doubt that in the coming months, we will transition from fighting procedure (no jurisdiction, improper joinder) to fighting actual evidentiary issues, but we are FAR from being there yet. John Steele is still messing around with trying to move forward with a reverse class action suit (article here), and if he succeeds, I’m sure the other law firms and media companies will copy his methodology and will first try their hand at John Steele’s new business model before scaling down what was (and for the time being, still is) their profitable mass copyright lawsuit business model to going after individual defendants. This current business model of joining hundreds, if not thousands of internet downloaders into one lawsuit is failing in the courts because of inherent procedural defects, but the model itself is not yet a failure. From what I hear, there is a huge settlement rate (e.g., I heard that 90% of defendants get scared into settling before even talking to a lawyer), and so for as long as they can continue to scare defendants into settling, their business model will remain a success.

I cannot see, however, the profitability of going after an individual for any other reason than to attempt to secure a few example cases in their favor. I have no doubt that even if they were successful in suing individual downloaders (an outcome which I doubt would be the case if the defendants hired competent attorneys to fight their case rather than going pro se), the media companies would never collect a penny from the defendants because in all likelihood, any defendant hit with a $150,000 judgment will immediately be hiring a taxi to drive them to the nearest bankruptcy court, followed by dinner at an expensive restaurant.

In short, beware of what you read online. Check your information from all sites against the simple facts, filings, and pleadings of the case which are publicly available to those who want to do their homework.

14 thoughts on “News articles claim that attorneys are filing copyright infringement actions against individual defendants for illegal downloads. Should I be scared?”

    1. Yes, there have been developments, but not good. DGW went on the offensive, and now the plaintiff is amending his complaint over and over again trying to solidify his claims and regain his footing. I completely respect what the plaintiff is doing, but it looks like his lawsuit is being knocked aside because of big law firm bullying.

  1. Mr. Cashman,

    At what point is the ISP notified of alleged infringement?

    Example: USCG files suit today against “John Does 1-1000”

    Has USCG already notified the ISP? Or do they wait until a Subpoena has been granted?

    Thanks in advance, and thank you for the informative blog!

    1. Jim, the attorney files suit on behalf of the underlying media company, the judge gives them permission to start discovery, they send that request to the ISPs, the ISPs send you a notice of infringement, and upon receiving contact information from the ISPs, the attorneys begin attempting to collect settlements from the John Does. This is where the procedure goes awry. Instead of attempting to collect settlements, the proper procedure would be for the attorneys to name defendants, serve them and allow them to defend themselves based on the merits of the case. Instead, the attorneys try to scare John Doe defendants into giving over multi-thousand dollar settlements before even naming them. This is why our approach of confronting the attorneys head on and stopping them from contacting the defendants directly has been so successful. It is hard to scare an attorney into a settlement when both attorneys know the case is flawed.

  2. Just a note, Patrick Collins has begun researching IP’s, if not already aware, in Wow Subpoena 11-24714 CA 22. I know, because I have received a notice. Has there been any evidence that they don’t have the “correct” IP? Its not that I’m against Porn, but I don’t believe I actually did download this. They didn’t name a title in the paperwork so I’m not 100% sure… but I go out of my way to make sure I don’t download copyright material.

    Is there a way of determining, without a shadow of a doubt, that it was MY COMPUTER and not someone who attached to my wireless network from my neighborhood?

    This whole thing makes me sick. However, i have spoken to an attorney and she recommends making them come after me and not worrying (too much) about it.

  3. Hey Mr. Cashman,

    I’ve been reading about these because I’ve recieved a letter from my ISP about a subpoena (11-24714 CA 22) and found that many other people from the same case are filing motions to quash it.

    I’m wondering the motions are approved would I be let off the hook as well or should I file one myself.

    Thanks.

  4. Guys I’m in as well on 11-24714 CA 22.. I’m in Illinois, which seems to bring up some issues as far as jurisdiction? Consulted a lawyer and he also said the firm representing the plaintif is a joke, and never has their stuff together. He recommended waiting, and if they send something he thought a simple angry letter back should take care of it. Be careful though some of the eff lawyer recommendations just kept saying.. we’ll settle it for you for a fee.. Don’t believe those are really looking out for best interest.

    1. That means that you are right in the crosshairs of the lawsuit. At this point, you either defend your case, or you settle it, depending on where you live, where you were sued, and your personal circumstances. Either way, you need an attorney to determine how to best move forward. -Rob

  5. My 87 year old father was named as well in in the John Does for 11-24714 CA 22. World War II Vet who has only 20% of his hearing left, wouldn’t know how to turn on a computer much less download anything and now getting calls from an attorney to “settle”. This is ridiculous and outrageous….Anyone can get into your IP address even if it’s password protected and people like my father wouldn’t have a clue. We do not even have the means to download anything like that. Unbelievable. Lawyer told me to wait it out….(PS Dad’s in ICU and they still want me to ask him to “settle”)

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