Copyright trolls have the power and force of the law to haul you into court and force you to defend your case by having you named and served as a defendant.
I’ve been bumping into more clients than ever who did not retain counsel and have now been “named and served” as a defendant in their infringement case (e.g., they were once just a “John Doe” recipient of an ISP Subpoena Letter, and now they have been served with paperwork and are now a defendant in their case).
The purpose of this post is to very explicitly state what you are up against at this point (this is for attorneys [unfamiliar with these cases] defending clients as well, as many of you also call me with the same questions as named defendants) and to give you your options. Here are a few examples of named defendants:
Patrick Collins, Inc. v. John Doe 6, Ching Y., et al. (Arizona U.S. District Court; Case No. 2:11-cv-01602 [or 11-cv-1602]) (1/7/2012)
K-Beech, Inc. v. George H., Shana S., Richard S., Brian T., and Catherine V. (Arizona U.S. District Court; Case No. 2:11-cv-01604 [11-CV-1604]) (originally, K-Beech, Inc. v. John Does 1-54) (12/19/2011).
…and K-Beech Inc. v. Derek L.; K-Beech Inc. v. Paul F.; K-Beech Inc. v. Carl P.; K-Beech Inc. v. Cesar V.; K-Beech Inc. v. Joseph G.; K-Beech Inc. v. Scott S.; K-Beech Inc. v. Hanna B., etc. (each in the U.S. District Court for the Eastern District of Pennsylvania)
In short, my opinion thus far has been that these so-called lawsuits each are pieces of one larger “extortion scheme” where the plaintiff attorneys have acquired your name and contact information (whether through early discovery in a federal court, or a lawsuit in a state court such as Miami Dade, FL, Maricopa County, AZ, or even St. Clair County, IL).
Then they called you and sent you what I described as “scare” letters telling you that if you did not settle by a certain date, they would name you as a defendant (either individually or as a smaller group of Does) in your home state’s federal court.
For whatever reason, you did not hire an attorney and you became what I referred to as “low hanging fruit,” meaning that you became an easy target because by not hiring an attorney, you told them that you are not taking their case seriously and that you probably did not educate yourself about what they could do to you.
Not realizing that the plaintiff attorneys are using the courts and the legal system to further their extortion scheme, you did not realize that these so-called “copyright trolls” could actually follow-up and “name” you as a defendant in your lawsuit.
[As far as I’m concerned, it costs them essentially nothing to do this. They have already sued you as a “Doe” Defendant, and by doing this they have already paid the filing fee. The complaints are all essentially copies of one another so the paperwork is already written (and if there is a no-name local attorney involved, he has probably been given templates by the Lipscomb & Eisenberg, Prenda Law Inc., or other firm behind the scenes (e.g., if it is a Patrick Collins, Inc. or K-Beech, Inc. case), so naming a defendant is a piece of cake.The hard part of finding a local attorney in many cases has already been done, and so it is just a matter of “naming” you as a defendant in the lawsuit.]
Even Dunlap Grubb & Weaver, PLLC (now parading as Media Law Group) has started to hire local counsel and sue dismissed defendants from their many cases from last year.
Can I hide from the process server trying to serve me?
Many people have asked me whether at this point they can “hide” from the process server so that they are not properly “served.” Many have also told me “I don’t live at that address anymore,” “I’ve since moved so they’ll never find me,” or “my ISP doesn’t have my correct [NAME SPELLING/ADDRESS/PHONE NUMBER/E-MAIL {pick one}].”
My answer to each one of these is to point out that you are not fighting a traffic ticket… This is a copyright infringement lawsuit in federal court. Whether or not you are guilty, these cases have the ability to broke you (and to potentially seize your assets and force you into bankruptcy).
Don’t try to outsmart the system.
It borderline offends me when people stick to their “I’m not guilty, they can’t do anything to me” viewpoint because this is simply not true.
The so-called copyright trolls have the power and force of the law to haul you into court and force you to spend tens of thousands of dollars to defend yourself or face a default judgement (essentially a finding of “guilty” because you did not timely file an answer once you were named).
Alternate methods of service of process.
If you are named as a defendant and you avoid service of process (“being served”), there are other ways to serve you.
Depending on the jurisdiction, they can post a notice at your last known address, they can publish a notice in the newspaper… the judge may even allow them to serve you by sending an e-mail to your last known e-mail address.
Don’t think that you are the first person to attempt to outsmart the legal system. People have tried all these before (and some have even fled the country), and this is why every attorney now learns about the ins and outs of service of process in their first year of law school.
Once you are served with paperwork.
So once you are named as a defendant, depending on your circumstances, the general rule is that you have twenty (20) days to file an answer in federal court.
An “answer” essentially is a denial of their claims, along with all your counterclaims and defenses (remember, if you don’t plead it in your answer, you lose the ability to argue it later).
Fail to file your answer in time and you’ve already lost your case and will be facing a default judgement.
Never rely on a “minimum damages” $750/title default judgement.
On this note, NEVER rely on a default judgement being $750 plus attorney fees & costs.
I know you have seen those few judgments (e.g., DC’s Call of the Wild Movie, LLC v. Does case) where named defendants didn’t respond and they only got hit with the minimum $750 statutory judgement (but then again, Judge Alsup in N.D. California hit two defendants with $30,000 default judgments each for not filing an answer).
Judgements can be $750, $30,000, $150,000, and based on the sole discretion of the judge, any number in between. I would never risk my financial future on hoping a judge had a good day. In short, if you are named and served, you must file an answer with the court.
This is the point where many defendants are when they contact me. They believe that they will “fight the good fight” and they will “take these f^%@&!! to court!”
What they don’t realize is that lawsuits cost money and time to fight, and that suddenly it becomes my job to manage their expectations and to explain to them that…
Depositions take time.
Drafting and filing documents take time.
Hearings take time.
And do defendants want a barebones defense? or do they want me to give the plaintiffs hell as well? This takes more time.
We CAN depose them, take interrogetories, and I’ve always said that with one winning case, we can bring down their whole extortion scheme. But this all takes…time.
And time costs you MONEY. So be smart before you declare war on those who have sued you. There are smarter ways to handle these cases, and so make sure your attorney knows your particular copyright troll, their capabilities, where they will crack, and where they will give in before you decide to step into the courtroom.
Now that you are named (and it took SEVEN PARAGRAPHS to get to this point), realize that your power of negotiating a settlement is severely limited at this point because the plaintiff attorneys have ABSOLUTELY NO REASON TO ACCEPT A SETTLEMENT AT THIS POINT.
I expect they are hoping that you do not hire an attorney and that you try to do this on your own, because if you mess up, they’ve just created a valid judgement against you which they can have the court enforce against you. Now if you have retained counsel, maybe they *would* decide to settle because as you’re about to see, we’re about to cost them a lot of money.
After we file an answer with the court… Discovery!
After we file the answer on your behalf, because their so-called evidence is insufficient to prove that you (and not someone else in your household, or someone using your internet connection living within a 3/4 mile radius [depending on the strength of your router]) downloaded their client’s copyrighted video(s), they will need to hire a digital forensics expert.
This is a costly step for them – you do not pay a penny for this — so that they can make a mirror image of your computer(s)’ hard drives and go through them with the equivalent of a microscope to see whether they can find a hint of the file(s) you are accused of downloading.
Deposition, where they try to take your testimony under oath.
Assuming they do not find anything incriminating, they will pull you in for a deposition under oath where they will ask you many hours of questions (with me at your side; again, think time) about your online filesharing use, your internet habits and activity, your schedule on the date of the alleged infringement, and anything else they need to establish that it was more likely than not you who did the download.
The Motion for Summary Judgement
Again, 1) assuming you are not guilty, and 2) assuming you did not say anything incriminating in your deposition, we would likely file for what is known as a summary judgement.
In this filing, we are essentially telling the judge, “Judge, they looked at my client’s computer(s). They questioned my client. They did not find anything and they have no evidence to move forward. Please dismiss.”
Attorney Fees to the Winner
Assuming we win, we will ask the court for attorney fees and costs to reimburse you for everything you have paid me. However, remember again, you just spent six months of your life fighting this. Had you contacted me before you were swept into this path of litigation, we could have avoided having you go through this in the first place.
—
“Do you want to be right? or do you want to be smart?”
Remember, as much as each of these steps will take time to fight on your behalf (and I’m happy to do this for each one of you), I always tell people that it is important to be practical and smart.
Your plaintiff attorneys are looking at this like a business, and so should you. I have no doubt they want to spend as little as possible to make the most amount of money from you that they can collect. As giddy as they may be from getting a $150,000 judgement from you if they took you to trial, chances are they will never see a penny of it.
I have no doubt this is why not one of these bittorrent cases has ever gone to trial.
Your plaintiff attorneys know this, as this was the lesson we learned from the MPAA and RIAA lawsuits from a few years back (where they did bring defendants to trial) — that it is more expensive to get a few large judgments than it is to get many smaller settlements.
If I have not said this loud enough, let me say this explicitly. Everyone (even each of your copyright trolls and their clients) has a cracking point and a monetary goal (yes, even after naming a defendant).
Your attorney should know:
1) how far they are willing to go,
2) how far they have gone before,
3) at what point(s) they would consider a settlement and for how much at each point, and
4) how equipped they are to move forward in case you do decide to use our firm’s services.
Without an attorney, you’re on your own and they have no reason not to trample all over you and demand as much as they can.
With an attorney, we are too much of a liability (one word from our client and we have no choice but to move forward with litigation) for them not to consider settling (contrary to what they’ll tell you) because we cost them time.
Great post. I know each situation is different, but at what point have you had the most success with responding to the Trolls.
I have had the most success when Doe Defendants hire an attorney before the ISP releases their names to the plaintiff attorneys. [When they get the list of names from the ISPs, they must sort the names into two piles — those represented by an attorney, and those not represented by an attorney.] You already know what they do to those not represented by an attorney, so I believe it is better to keep my client out of their “prospecting” system from the beginning. As soon as letters go out and the phone calls start, so-called “deadlines to settle” start appearing, the settlement amounts start increasing, and plaintiffs often trick defendants into calling them and admitting some form of guilt. While I can take a client at any point (even after being named), it is easiest for me if I can control the situation from the moment they learn of the lawsuit so that they do not make any missteps.
I’ve never seen this issue addressed: what if the defendant is dead? And before that, did not even live at the location where the copyright infringement allegedly occurred. As far as I know they can’t serve a dead person (as far as I know).
Does the deceased have an estate with assets? And, (from the point of view only of the plaintiff attorneys, not current law) was the account under the name of the deceased? (Trolls equate ownership of an account with guilt for misuse of that account.)
Yes, but the estate wasn’t probated due to estate planning. The account was (is, I dunno) under the name of the deceased. I’m well aware that the trolls equate ownership with guilt but hasn’t it been established that ownership does not equate to guilt? Especially since he was paralyzed before the alleged infringement occurred and lived in a nursing home before the alleged infringement occurred.
After I got sued by the jerks at Dunlap Grubb & Weaver I pretty much just ignored them while doing my homework to prepare my defense.
In doing so I discovered they don’t have an actual case at all, not in terms of anything that would hold up in court.
IF they end up suing me with a local lawyer I will fight every single motion and dispute every single point and make sure that it is time-consuming and expensive for them beyond their wildest expectations.
And if they win? So what? I’m judgment-proof. They won’t find out about that though until I’ve already bankrupted them with legal costs. Maybe they can manage to claim a cat.
I just hope I don’t give away the game with a grin on my face before it’s too late for them to stem their losses!
Nice article. I have a colleague who has just received a letter from Comcast for the movie “The Mechanic” which he has allegedly downloaded from a torrent site. Comcast will be giving his information to the same Dunlap Grubb & Weaver group which will then file a lawsuit. His internet was un-secure and he lives with room mates. He has no idea how the movie was downloaded and he got this letter. What will be the best approach for him? Can he quash the subpoena with Attorney’s help?
I expect that you have already advised your friend to read this blog and if he wishes to speak to one of us, he can schedule his appointment at http://www.cashmanlawfirm.com. I didn’t know Dunlap Grubb & Weaver, PLLC was suing on the “The Mechanic” movie. To which case does this movie belong? -Rob
Well, duh! Cashman is a lawyer, and he makes his living from his trade. Of course he’s going to sell his services. You can’t feed your family on gratitude – nothing in this world is free, up to and including a lawyer’s “free consultation”. Any lawyer who doesn’t make his sales pitch at the end of the consult is either unqualified for the case or starving to death. Everybody’s out to make a buck. Deal with it, it’s called capitalism.
Of course, there’s the fact that 99% of people doing their own independent research on these cases learn the most from what Cashman gives away for free. There’s the fact that Cashman constantly tells people to make their decisions from the standpoint of a risk vs reward businessman, and not from an emotional reaction of fear.
When you HAVE to deal with a salesman, it’s always good to identify the one who offers you the fair deal vs the one who tries to pull one over on you with a snap decision.
CTVic, thank you for standing by me. I contacted the person you replied to and decided to delete the post before seeing that you replied to it. This is not the first time I have deleted inappropriate ‘flame’ posts from this user (at his request after he realized his contact information was left in his posting), and consequently, even he was helped by the blog. In short, he has a problem with me having this blog where a number of readers end up as clients of the firm, and more generally, he has a problem with lawyers. -Rob
I also agree by CTViC. Rob has this blog not only to provide news about the cases but to sell his services. I can vouch for Rob because I see him engaged with most of the blogs ablut these cases. This tells me that he does his research and is at the forefront of the fight. People need to remember that not everyone makes good decisions and stays up to date about these cases. It behooves these people to get representation instead of talking there way into being named. Do I agree with everything Rob says in this article… No. Would Rob be a lawyer I would recommend to any Doe needing representation… Yes!! You can’t do much better then Rob. If I feel my case start to turn for the worst I will be calling him for a consultation
At the risk of sounding repetitive, thank you for your kind words. It is unfortunate that these cases need to be here in the first place, but while they are here, I’m happy to be of assistance.
I see your point. I am one who has the “take the fight to them” mentality, only to realize that the legal fees and time are potentially hefty.
Once you are ultimately named, even of innocent, does it make more sense fiscally to just start negotiating a settlement once the Troll Letters start?
It seems as if once the start attacking on a local level (based on the above) the seemingly inevitable settlement cost would only increase the eventual sum…
*Edit*. This post is BC (before coffee), please excuse the errors :p
I am also of the “take the fight to them” mentality, and if someone has the financial means and/or the time to fight it — I always say go for it. However, for most of us who live a “business hours” life with family and obligations, eventually our emotions need to step aside and we need to take an unemotional look at the reality of what it would cost to fight this versus how much it would cost to settle. I have no doubt that I will be criticized for vocalizing this and making it plainly visible, especially because it is not “cool” to settle. To add to the financial hurt of settling, when you settle, every dollar of what you spend will embolden those who have wronged you and every dollar you pay them will be used to sue more people. For a while when the plaintiffs were suing in the wrong courts, very few (if any) of my defendants settled. Now that the lawsuits are filed in the federal courts of the defendants’ home states, defendants need to take a hard look at whether it makes more sense for them to fight the case (I have outlined how this would happen in this article), or to settle it. I wish more would fight, and every day I look for ways to make fighting the case more affordable than settling. [Obvious caveat: Don’t settle on your own — use an attorney (even someone other than me if that will add credibility to this statement), or else you’ll probably be calling me a month or so down the line because the contract you agreed to on your own without hiring an attorney to negotiate the terms on your behalf had some loophole which the plaintiff attorneys purposefully put there and now you’ve lost your money and need to start all over with another settlement.]
Rob,
I think you pretty much laid out the dilemma for most. The feeling to fight these trolls to the death, but the rational thought that the smart decision is to find a way to return to “normal” life as soon as possible and settle if actually named. One question, Do you make sure all settlements your clients sign are “global” settlements? My concern is that since the trolls evidence remains unchecked they can stick an IP in any list and continue the scam. Or someone may have downloaded two movies but never received a subpoena for the second movie.
You’ve asked a few questions in your comment, but in short, there is no “silver bullet” when settling with the plaintiffs, and anyone who suggests that there is a one-size-fits-all settlement is missing something. There needs to be a degree of specificity in the contract, but then again, it’s always a balance of being as broad as possible and not being too broad as to make the contract unenforceable. Obviously we are paying attention and are aware that there could be multiple lawsuits, and based on the client’s needs and how far the plaintiff will go, we adjust the scope of the contract accordingly. Sometimes it makes sense just to settle the case; other times, it makes sense to pay a little bit more for a “blanket” release. Again, there are a lot of factors here, and this is why people hire attorneys, namely, because we do our best to know all the factors to weigh to best determine how to proceed.
When I mention “Global” settlement I mean that covers any claimed infringement that occurred before the date of the settlement. Obviously no troll will agree to a settlement that agrees not to sue for any future infringement.
Yes, I’ve done these before. As I mentioned above, sometimes it is worth it; other times it is not worth it. The reason I can say this is that I have hindsight on what each attorney has done in the past, so while they can always change how they act or what they will do, I still can properly advise a client how to best to move forward.
I’ve been trying to find out more about a particular case. My dad’s ISP was given a subpoena and he didn’t respond. Apparently it’s this Ira Siegel character and its over a Third Degree Films V Does 1-2010. Can’t find any info online about it. Obviously not a lawyer, just trying to find some info or update. He hasn’t received anything since last May’s letter from his ISP informing him of the subpoena.
Speaking of pseudo named defendent cases…. Prenda isn’t good at those either. Once again Gibbs has the door shut on him. Now he has had his proposed discovery order to depose a single doe denied. So much for E.Cali being the new front for Prenda.
http://www.scribd.com/doc/78307409/Order-on-Motion-for-Discovery
I love comments like this one. 🙂 Thank you again for sharing. -Rob
Rob, any thoughts on why there is hesitation to name defendants? Sure they can name the subscriber tomorrow, but why not do it to begin with? In the mass cases where all but one Doe has been severed and the judge told Prenda to name the remaining Doe, the cases have been voluntarily dismissed or are festering on the docket.
Clearly they want to minimize the money/effort expended per settlement, and the single Doe/named defendant cases are reluctantly pursued to produce examples that can be used to increase the settlement rates for the mass cases. That said, once they decide to pursue an individual it seems like naming and serving to crank up the heat would be the best way to either a fatter settlement or default judgement. This is the “nightmare” scenario and yet Prenda doesn’t do the very thing that should scare Does the most, even when the subscriber apparently has no representation. To a Doe without a legal background it looks like these guys are cowards, have no plan and are grasping at straws, but I think it would be foolish to get comfortable with that idea since they have demonstrated enough cleverness to build the scam in the first place.
Is it because stalling gives them a chance to get the settlement with even less effort? Because once a defendant is named and things start moving, they are required to do paperwork on a deadline vs. harassing the Doe at their leisure? Logistics are surely an issue with the number of Does they already have and the number is growing all the time. Is the problem simply that even in a lopsided battle of law firm vs. clueless average Joe, it’s not cost-effective to aggressively pursue a case? That turned out to be the case for the RIAA’s and they had deeper pockets than these guys can ever dream of, although they ran their campaign to make a statement while the Trolling operations are structured to be profitable.
Or are they navigating the legal system to avoid potential counterclaims as long as a defendant is never named? So if they stumble on an innocent Doe with an airtight defense then drop the case but the Doe decides to go after them they can say “well we never actually filed a lawsuit against you, then we dropped the lawsuit, you have no standing, your claim is invalid!”?
They must be mindful of the risk of naming the wrong defendant, as an actual defense or countersuit could be disastrous and cause the whole scam to unravel. Righthaven is in flames as we speak, and their demise began the instant they were seriously challenged in court, so the Trolls in these cases fear the possibility that their business model collapses the day someone really hires a lawyer to defend their suit. I’m certain this fear of liability is why we are now seeing plaintiffs that are offshore shell companies founded in tax havens, like Ingenuity 13 LLC (Saint Kitts and Nevis) and 4: Twenty Media Inc. (Seychelles). But that seems like it could bring its own problems with attracting the attention of law enforcement and regulators (especially IRS).
I am pretty sure that you answered your own questions in your comment, but here is my opinion. Just as I hammered the point that it costs significant amounts of time and money to fight a case once you are named, so to it costs them the equivalent amount of money (if not significantly more) to pursue it. Naming a defendant is essentially free — the plaintiff attorneys upload a new complaint naming a defendant, and then pay a process server $60-$125 to serve that defendant, and then they sit back and wait for the defendant to default or file an answer. However, if you have seen the transcripts of the depositions (question-and-answer testimony under oath), each of these is very time consuming (hours long), the transcription costs are enormous, the lawyer fees are similarly large, and on top of that, they often need to pay the travel expenses of the defendant being deposed. This is hugely costly for one defendant. Now imagine repeating this process for ten defendants, or even one hundred defendants, and so on. If they went this route, I have one simple question. How would this business model continue to be profitable for them, and how would they continue to have the time to elicit settlements in the hundreds and maybe thousands of phone calls they make each day? Lastly, people always forget one last point. If they name a defendant, that defendant can also depose the attorneys, the plaintiff production companies, even the actors, and everyone else. The information alone that can be gathered from such depositions could kill every bittorrent case around.
Denied again by below judge in two cases… Prenda must be shocked that the courts are not a fan of transparent extortion attempts that try to use the courts as an accessory. 🙂
http://www.scribd.com/doc/79308262/Gibbs-Denied-Again
I am curious to know whether it would be a good idea or a bad idea to send a responsive letter in response to a settlement offer denying the allegations of downloading the movie and stating the reasons why the account holder or anyone in his house did not download the movie and even stating that they would be willing to have their computers checked by a third party source at the expense of the plaintiff? Or would offering up this information not the best?
Al, let’s think practically. You are not a defendant yet in the case, so why spend the effort defending yourself? If they want to name you, the proper place to assert your defenses and counterclaims is in the answer. In addition, remember that these cases amount to one large extortion scheme. They collect the most money from those they can scare into settling. They call hundreds if not thousands of defendants each day. If you send in a letter, don’t you think you might as well buy a shopping bag from the “Target” store and attach it to your letter? 😉
Even if the letter is written by an attorney? Wouldn’t it at least give them the knowledge that the person is represented in some sort of capacity. Is it rare that a letter like this would even elicit a voluntary dismissal on their part? I understand that this is all a scheme to try to get money, but what if they do proceed to naming defendants. Is it better to wait it out and do nothing essentially once a settlement letter is received?
I have never seen or heard of an attorney letter which inspired them to dismiss a particular defendant. No doubt, a letter of representation (which says, “I’m Doe X’s attorney,” can include as much “muscle” as the attorney wishes to assert. However, the proper place for the arguments is in front of the court (especially because in most cases, your plaintiff attorneys already know the quality of their evidence is at best dismal). Obviously an attorney should use his professional judgement on what to say when — part of our expertise is not only knowing what to say, but also knowing when to keep our mouths shut. My opinion is that it’s probably best to save your “secrets” and your strategy for your answer, if you are ever even named. Obviously I am not yet your attorney and this is not legal advice, but then again, most plaintiff attorneys know what I think about these cases (they are readers just as you are) so I don’t find any need or desire to prove anything to them.
“For whatever reason, you did not hire an attorney and you became what I referred to as “low hanging fruit,” meaning that you became an easy target because by not hiring an attorney, you told them that you are not taking their case seriously and that you probably did not educate yourself about what they could do to you.”
What about John Doe 6 in the first AZ case you listed? It looks like he hired counsel from the start yet the tolls are still trying to name and serve him. It also appears that the court has not yet made a decision on his MTQ. Very interesting…..
When G-d created attorneys (obviously being sarcastic), he did not make them equal. Some failed the bar exam a few times before getting admitted, and others passed the bar the first time but learned nothing in law school except which bars to attend. Some attorneys might as well have stones in their heads instead of brains, and others worked hard, learned the law, and became good lawyers. I am not touting my own skills or my own intellect because I know many attorneys who are smarter and quicker than I am. But as I’ve said from the beginning — in these cases, there is a huge difference between what the law says, and what actually works and what does not work in the courts (for example, the disaster regarding the motions to quash — in theory these should work). The problem in my opinion is that when a defendant hires a cookie-cutter attorney (e.g., one that works for a larger law firm) where people other than the attorney (e.g., partners) make the decisions on how to proceed, and the where the attorneys are fully detached from the reality of the capabilities and motivations of the parties involved in the cases and the personality of the judges — I’m pretty sure these attorneys will quickly end up with their clients named because they do not know how to operate within the “John Doe” phase, IMO because they’re on a billable hour standard. I’ve said a lot here, but when you hire a cookie-cutter attorney who argues the law with irrational plaintiff attorneys (who probably never read the cases you are quoting them to prove they have no case), you’ll get a cookie-cutter result (e.g., being “named”). As an analogy (which could have summed up this entire comment), next time you’re in a magic forest, try talking poetry to a giant — see whether he responds with kindness, or whether you end up having a rock thrown at you.
As usual, the information you provide is well worth reading and learning from. Thank you for you effort and keen insight.
DieTrollDie 🙂
Is there any value of in-state vs out of state counsel??
In the context of defending a case after being named, yes — in the context of negotiating a settlement on your behalf, no. If you are fighting your case, while I can certainly represent you in your federal court (an attorney admitted in any state can “pro hac” into any federal court in another state), in most cases, I would opt to hire local counsel to be prepared to appear on my behalf in case an emergency hearing is scheduled (and for other obvious reasons, e.g., saving you airfare each time there is a hearing). Similarly, many federal courts require that an attorney representing a named defendant have local counsel anyway if that attorney does not live within the jurisdictional confines of the court. In short, if you have been “named” and served with paperwork and you wish to fight, then it is certainly less expensive hiring an attorney in your home state (not to mention that an attorney who is in the state in which the lawsuit is filed has the “home advantage” (e.g., of knowing the court, of knowing the judge) which an out-of-state attorney may not). I hope this helps.
I am a lawyer in Ontario and the subject of SOPA/PIPA and Bil C-11 (amending Canadian copyright law) came up in conversation with a long-standing client.
In the rest of the common law world, the losing party pays costs. And there are rules which provide a substantial advantage to a winning party to make an Offer to Settle the action or even a motion.
So the question becomes: is there not some basis for a counter-suit or use of the rules to recover costs thrown away, where the plaintiff actually has no claim.
Seems to me that the troll plaintiffs come close to or fall under 18 USC 1001, when they make assertions about Doe Defendants where they have no proof and therefore “makes any materially false, fictitious, or fraudulent statement or representation” It seems that this could be a solid ground for a request for costs under Federal Rule 54, or even 28 USC 1927, since it is clearly vexatious to continue a suit, where there is no possibility of proof of the claim advanced. ( The dead defendant situation comes to mind!).
What havebeen the results of costs requests generally (Righthaven being a dead vulture of a different genus).
It is inaccurate to say that they have “no proof” — it is more accurate that their proof is faulty (in fact, very faulty), and that they arguably lack the elements to move forward with the lawsuit. That being said, this is not the first time I’ve seen the statutes you quoted. Speaking from a mere legal perspective (because no doubt such lawsuits wreak immeasurable financial and emotional damage on the families of the accused), a putative defendant is just that — putative — and I understand from watching the courts’ rulings that a putative defendant’s claim that he has been damaged would likely fail because he has not been named as a defendant and thus he is not a party to the lawsuit. If he were named, he would assert items such as these in a countersuit and/or in his answer. That being said, I find that the tables would turn significantly if we filed what is called a declaratory judgement where WE initiate the lawsuit based on the implications of the Doe lawsuits. Yes, there I would consider bringing up these items. Lastly, the dead defendant scenario (which I’ve seen a few times now) usually ends up being an account holder who is deceased, but the family continued service under the deceased’s name. This “Doe” defendant once named would not be the account holder, but the family member in the household who actually did the download.
Prenda founda new client. Bubble Gum Productions, LLC
Thank you Bing for the heads up. I just posted a quick update in the discussion section (http://bit.ly/wHvQFr). I’m not sure if placing the tidbits of new news there is appropriate, but let me know your thoughts.
Once the identity of an individual has been obtained, do trolls ever pursue an one individual more vigorously based on what personal information the troll is able to find out about the would-be defendant?
No doubt they check up on who they are going to go after. It is a business for them, and if they are going to go through the expense of naming someone, they better check to see whether that person has assets to pay a judgement if they win. That being said, most plaintiff attorneys are in this for the quick settlement cash, and so they do not do research on every Doe Defendant, but rather, they use the shotgun / eenie-meenie-miney-moe approach.
My case was dismissed and I have been following the rfcexpress website for any recently filed cases in my state and found none. As far as I know the plaintiff does not have any legal representation in my state either. Should I still be worried about being served?
Obviously without a lawyer, you need to keep an eye on the http://www.rfcexpress.com website as you are, as this will identify whether your plaintiff attorney is suing others (directly or indirectly) in your state. Practically, if your plaintiff is going to start suing in your state, you’ll see some lawsuits pop up on that site (either as “Does 1-X” lawsuits, or as “Plaintiff v. Named Defendant” lawsuits. With so many defendants, the statistical likelihood that you would be the lucky first to be sued is possibly quite low (or not) depending on where you live.
My “Doe” case was dismissed last year, the judge would not allow the trolls to gain access to my IP information. Today, eight or so months later, I get a call out of the blue from the representative of the troll saying they are naming me as an individual. I am not sure how they got our information.
At what point in the process is the best for the judge dismissing, is it possible for this to happen after the ISP releases the info but prior to turning it over to the Plantiff.
Anyone else know anything about Malibu Media, LLC and Adam M Silverstein CAVALLUZZI & CAVALLUZZI?
Have you seen cases where people received a letter from their ISP claiming illegal downloading and the civil suit associated with it but their IP address wasn’t one of the ones listed? There must be some association because of the letter but I’m not sure what it is our how it works.
Stewie, there are many mistakes in these lawsuits, often having sloppy lawyering or an overwhelmed ISP as the root cause.
With Comcast, the IP address in the subpoena appears to be the IP for my cable modem, does Comcast log IP, MAC, and history for each computer that access the web using a wireless modem attached to the cable modem?
Anom, you should assume that your ISP has your accused IP address, your contact information, and the MAC address of your router (your cable modem). There is no reason for them to peer past your modem.
Just looking for some advice. I was included in a Does case in the Western District of Michigan. This is a new thing in my area, and in our court the Judge ordered the other defendants to be dismissed from the beginning. I happened to be Doe number A so my case was the only one that remained active. They named me in the case as soon as they received my information. I contacted an attorney who helped me write the answer to the complaint and a letter to the plaintiffs attorney offering a settlement. I submitted the answer and sent the letter to the attorney. My attorney thought it would be better for the letter to come from me rather than him because he didn’t want it to seem like I had the money to hire him. I have not heard from the other parties lawyer at this point and they received the letter a week ago. My question is what should I do now? I feel like this case is different than others i have read about because I never received anything from the troll until they left a copy of the complaint without a summons at my house. Any suggestions on what to do?