Month: March 2017

Why Character evidence is Really Fake Evidence.

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motions-to-quash-faq Motion to Quash in One Page

Copyright trolls often surprise me by the lengths they will go to prove that a particular “John Doe” defendant downloaded a particular movie. Because the underlying copyright infringement cases likely cannot prove copyright infringement, instead, copyright troll attorneys will spy into the internet connections of their accused defendants and determine what other movies, videos, or content that accused downloader allegedly downloaded. They use those additional downloads as ‘character evidence’ to assert that the defendant downloaded the accused movie. (Next article, I will describe how they are likely doing it.) [Tweet This!]

ANSWER: CHARACTER EVIDENCE IS REALLY INSUFFICIENT OR NON-EXISTENT EVIDENCE.

By showing character evidence of ‘other downloaded movies,’ copyright trolls prove that the accused “John Doe” Defendant has the personality or ‘character’ of being a habitual infringer (a ‘pirate’).  This character evidence shows that the defendant is familiar with piracy tools and illegal methods of acquiring movies and videos from bittorrent websites (e.g., The Pirate Bay). By demonstrating to the court that “someone from that same IP address downloaded these other movies,” the copyright troll seeks to prove that “the accused defendant must have also downloaded this movie as well.”

character-evidence-settlements Copyright Trolls Use Other The Pirate Bay Downloads to demonstrate character evidence to infringe their movie copyright.

[NOTE TO THE READER: WHAT YOU ARE ABOUT TO READ IS A GREAT ARTICLE, BUT IT NEEDS A ROADMAP TO UNDERSTAND THE FLOW OF IT.]

HERE IS THE ROADMAP:

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  1. INTRODUCE THE CONCEPT OF ‘CHARACTER EVIDENCE’ (A LEGAL TERM), AND DESCRIBE WHY EVIDENCE OF ‘OTHER TITLES DOWNLOADED’ IS INADMISSIBLE TO PROVE COPYRIGHT INFRINGEMENT.
  2. INQUIRE WHY PLAINTIFF WOULD TAKE THE EXTRA STEP OF SHOWING ‘OTHER TITLES DOWNLOADED’ IF HE HAS SOLID EVIDENCE OF INFRINGEMENT.
  3. DISCUSS THE NEBULOUS ‘PCAP FILE’ WHICH CAN PROVE INFRINGEMENT, NOTE THAT THE PLAINTIFF HAS ACCESS TO THIS FILE, AND YET IT IS MISSING FROM THE PLAINTIFF’S CASES.
  4. SUB-TOPIC: THE EVIDENCE THE PLAINTIFF ACTUALLY HAS IS “SNAPSHOT EVIDENCE.” COURTS REJECTED SNAPSHOT EVIDENCE AS BEING INSUFFICIENT TO PROVE COPYRIGHT INFRINGEMENT.
  5. (I RETURN TO THE MISSING PCAP EVIDENCE AND DEMONSTRATE THAT THE PLAINTIFF ATTORNEY MISDIRECTS THE COURT BY REFERRING TO A SOFTWARE REPORT, BUT GLOSSING OVER THE PCAP EVIDENCE).
  6. END THE ARTICLE BY COMMENTING THAT SHOWING ‘OTHER TITLES DOWNLOADED’ TO A DEFENDANT IS AN EFFECTIVE STRATEGY IN SCARING HIM TO AGREE TO SETTLE THE CASE.

1. EVIDENCE OF ‘OTHER TITLES DOWNLOADED’ IS INADMISSIBLE CHARACTER EVIDENCE.

In the eyes of the law, ANY CHARACTER EVIDENCE OF ‘OTHER MOVIES OR TITLES’ DOWNLOADED BY THE JOHN DOE DEFENDANT IS INADMISSIBLE TO PROVE THAT THE DEFENDANT DOWNLOADED THE MOVIE TITLE FOR WHICH THAT DEFENDANT WAS SUED. Malibu Media, LLC tried using character evidence and failed. For a while, they were listing other movie titles and illegal downloads that accused defendant participated in, and the courts reprimanded their efforts.

Specifically because Malibu Media attempted to admit character evidence into their complaints, in the Western District of Wisconsin, Judge Stephen L. Crocker consolidated each of Malibu Media LLC’s cases.  Here, the judge ruled that character evidence of ‘other titles allegedly downloaded’ was not only inadmissible, but it was prejudicial to the defendant’s case (see attached order).

According to the Federal Rules of Evidence (“F.R.E.”), evidence of a person’s character to prove a consistent act with that character is called ‘character evidence,’ which is inadmissible to prove copyright infringement. (See the Federal Rules of Evidence, §404 on Character Evidence).

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2. WHY WOULD COPYRIGHT TROLLS USE CHARACTER EVIDENCE OF ‘OTHER DOWNLOADED TITLES’ WHEN THEY CAN PROVE INFRINGEMENT USING THE PCAP FILE?

Why a copyright troll would resort to using ‘character evidence’ of ‘other titles downloaded’ to prove that the downloader must have downloaded this title is puzzling.  The copyright holders DO have evidence of infringement, don’t they?

3. EVIDENCE OF INFRINGEMENT CAN BE FOUND IN THE PCAP FILE.

Perhaps the reason why the attorney is seeking to find “other titles” an accused defendant downloaded is that copyright trolls do not actually have evidence that the defendant downloaded this movie.

For the technical-minded, this evidence of copyright infringement would be found in a “PCAP file.” Copyright holders have this file, but they will never release to the courts. This PCAP file would indicate whether a downloader merely clicked on a link and connected to a bittorrent swarm WITH THE INTENT* to download, view, or stream a movie, or whether the accused defendant actually copied a substantial watchable portion of the movie. (*NOTE: a defendant who had ‘INTENT’ to commit a copyright infringement cannot be found guilty of ‘willful’ copyright infringement if the download or the viewing never actually took place.)  The PCAP file is hidden from the courts and is never introduced to prove that the defendant downloaded the movie. Instead of documenting actual evidence of infringement, the copyright troll attorneys find “other titles” that the defendant allegedly downloaded.

[Tweet This!]

4. HOW TROLLS REPLACE PCAP EVIDENCE WITH ‘SNAPSHOT’ EVIDENCE.

The omission of the PCAP evidence is relevant to an accused defendant in a bittorrent-based movie lawsuit.  The reason for this is because courts are misled into thinking that a report containing a list of IP addresses of accused downloaders at some ‘snapshot’ or time period by proprietary Peer-to-Peer surveillance software is sufficient to prove infringement.  However, the so-called ‘SNAPSHOT’ EVIDENCE of infringement (described below) might demonstrate only that the accused John Doe Defendant was present downloading a bittorrent file at a particular date and time.  ‘Snapshot’ evidence of infringement has been rejected by the courts as not being sufficient to prove copyright infringement.

Further, the companies that do the ‘snapshot’ tracking of the bittorrent networks — IPP International, and here in the Texas-based cases, MaverickEye UG, all appear to be shell companies of Guardaley.  For those who are new to the site, Guardaley is the German company our firm has been investigating to find the connection between almost every copyright infringement case hitting the US courts.  Guardaley has been the common thread between each lawsuit, regardless of whether the copyrighted material is pornographic (as in the Malibu Media, LLC lawsuits), or whether it is a mainstream movie.

For current defendants, the ‘snapshot’ evidence problem as I will describe it below likely applies to each of the “Mechanic:Resurrection” movie lawsuits (ME2 Productions), each of the “I.T.” movie lawsuits (I.T. Productions), each of the “Mr. Cook” movie lawsuits (Cook Productions), and literally every other movie lawsuit filed in the last seven years, as listed on Carl Crowell’s list of Guardaley clients.

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character-evidence-settlements Character Evidence of 'Other Movies Downloaded' To Prove The Download of THIS movie.

4A. SUB-TOPIC: WHY “SNAPSHOT EVIDENCE” IS INSUFFICIENT TO PROVE COPYRIGHT INFRINGEMENT

Source: Judge Otis Wright’s 2013 order from the Ingenuity 13 LLC v. John Doe (Case No. 2:12-cv-08333) case in the U.S. District Court for the Central District of California.

RULE 2. A “SNAPSHOT OBSERVATION” OF AN IP ADDRESS ENGAGED IN DOWNLOADING AT THAT MOMENT IS INSUFFICIENT PROOF OF COPYRIGHT INFRINGEMENT

Here, all the evidence a copyright troll plaintiff has on a suspected defendant is that at a particular date and time (a “timestamp”), that particular IP address was engaged in the downloading of a particular copyrighted file.

Here, a “snapshot” of an IP address correlated with evidence from the subscriber’s internet service provider (“ISP”) [that it was the subscriber who was leased that IP address during the date and time the alleged activity took place] is insufficient proof that the download actually took place. The defendant could have merely entered the swarm and could be in queue to download his first byte of data. The defendant could be 10% done with the download and could have in his possession an unviewable fragment of the copyrighted video.  This is hardly enough to rise to the level of “SUBSTANTIAL SIMILARITY” that is required in order to find a defendant guilty of copyright infringement. And, yet at the same time, that same snapshot could refer to a defendant having a download which is 99% complete.

A snapshot of an IP address in a bittorrent swarm is simply not conclusive that the downloader infringed the copyright.

The analogy the judge gives is taking a “snapshot” of a child reaching for a candy bar. In order to find someone guilty of copyright infringement, a plaintiff needs to prove that it is “more likely than not” that activity rising to the level of copyright infringement occurred. A snapshot places the defendant at the “scene of the crime.” It does not convict him for the unlawful act itself, and usually this is all the evidence a plaintiff copyright troll compiles when tracking a bittorrent swarm.

[Tweet This!]

5. RETURNING TO THE OMISSION OF PCAP EVIDENCE IN PLAINTIFF’S DECLARATION. WHY THEY TURN TO ‘CHARACTER EVIDENCE’ OF ‘OTHER TITLES DOWNLOADED’ WHEN CONFRONTING A DEFENDANT

Instead of providing the PCAP file (which can prove or disprove whether actual infringement happened), the copyright holders have some expert witness file some declaration stating that they have viewed the reports generated by the bittorrent surveillance software.   That expert witness declares that they have verified that the IP address list created by that software matches the list of defendants who are accused as “John Doe” defendants in this case.

[Tweet This!][Curiously, even copyright troll attorneys list themselves as expert witnesses to show that they viewed the software printout.  I don’t know why an attorney would do this, because this makes the plaintiff attorney a discoverable witness in discovery. Here in the Texas ME2 Productions, Inc. v. Does lawsuits, we see plaintiff attorney Gary Fischman’s declaration stating exactly what I have described:

Gary Fischman Declaration Regarding Maverickeye UG (Guardaley) P2P swarm surveillance software report. by Cashman Law Firm, PLLC on Scribd

As a defense attorney, I am puzzled why the plaintiff attorneys often try to prove their case with inadmissible character evidence (“other downloaded titles”).  I understand that copyright infringement in the context of a bittorrent swarm can be proved by the PCAP file (e.g., stating that the movie was 100% downloaded).

Thus, it logically makes sense that the attorney simply DOES NOT HAVE EVIDENCE OF INFRINGEMENT.  This could be why he goes to such lengths to prove that the downloader downloaded the other titles.

6. NEVERTHELESS, SHOWING CHARACTER EVIDENCE OF ‘OTHER TITLES DOWNLOADED’ IS STILL AN EFFECTIVE TACTIC.

From the copyright troll’s perspective, the goal is not to ‘nail’ each “John Doe” Defendant and make them liable for the $150,000 in statutory damages. Rather, a copyright troll seeks to elicit a settlement of a few thousand dollars from each “John Doe” defendant. 

Thus if the copyright troll isn’t interested in proving copyright infringement, but rather wishes to scare the bejeebies out of the accused defendant who actually downloaded those additional titles, then showing that defendant the list of ‘other titles downloaded’ *is* an effective tactic to manipulate them to do whatever the plaintiff demands of them, even if that means paying a multi-thousand dollar settlement.

[Tweet This!]

IN SUM: WHICH ONE IS IT?

So which is it?  Does the plaintiff actually lack evidence of infringement as I have suggested by the missing PCAP file and the misdirection in the declarations filed with the court?  Or, does the copyright troll want to use the so-called ‘character evidence’ of ‘other titles downloaded’ to demonstrate to you (the John Doe Defendant) that you must have been the one who did the download of the movie (and thus you should pay him)?

My opinion: it is both. [Tweet This!]

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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.

Turnkey Settlement Factory Defense Attorneys and Malibu Media LLC

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malibu-media-case-consolidations

MALIBU MEDIA DEFENDANTS HAVE IT TOUGH ENOUGH

Malibu Media, LLC v. Doe lawsuits have plagued the US federal courts so far with over 6,000 lawsuits filed nationwide.  The burden to the courts to manage each of these cases is large.  The emotional and financial burden to families faced with subpoenas sent to their ISPs forcing them to decide whether to file a motion to quash the subpoena or pay a large settlement is staggering.

There is no public defender to represent John Doe Defendants against Malibu Media, LLC in motions to quash, and so-called defense attorneys are using the $150,000 statutory damages these cases come with to manipulate those they speak to into settling the Malibu Media lawsuit.  

MAKING IT WORSE: SETTLEMENT FACTORY DEFENSE ATTORNEY PRESSURE CLIENTS INTO PAYING OVERPRICED SETTLEMENTS.

What many John Doe defendants have told me in response to the articles that have been written on “Turnkey” / Settlement Factory defense attorneys is that they have been overpaying to the tune of thousands of dollars per settlement because their attorney agreed to settle for a “per case” amount significantly higher than I know Malibu Media, LLC would have come down to in a settlement negotiation.

For this reason, I am posting again on the topic of defense attorneys who run what I call “turnkey settlement factory defense attorneys”.  

In this article, I am not blowing the whistle on the defense-attorney-working-for-plaintiff “weretroll” issue (those who know what I am speaking about have been informed about it), but I am revisiting the caution an accused defendant should have when hiring an attorney who promises a ‘quick 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“

shalta book now cta

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.]

settlement-factory-defense-attorneys Screenshot from Malibu Media, LLC's X-Art.com website.
Screenshot from Malibu Media, LLC’s X-Art.com website.

“TURNKEY” / SETTLEMENT FACTORY DEFENSE ATTORNEYS

There are attorneys who have turned the copyright infringement lawsuits into ‘turnkey’ settlement operations, ‘riding the gravy train of a broken system’, as one prominent blogger correctly put it.

These attorneys scale up and hire attorneys to answer phone calls, but instead of honestly evaluating the meritorious defenses of a would-be client, they scare, threaten, and apply high-pressure tactics to accused defendants manipulating them to settle the claims against them.

Knowing that Malibu Media, LLC runs their settlement operations from a location above-the-head of the local attorney who is filing the lawsuit, their settlement prices have become well known.  

But Settlement Factory defense attorneys have been known to offer their clients higher than normal settlement amounts in return for foregoing the need to actually participate in settlement negotiations.  

RUNNING THE NUMBERS OF “LOW COST” SETTLEMENT FACTORY DEFENSE ATTORNEYS vs. “ORDINARY” ATTORNEYS.

Thus, where a Malibu Media, LLC settlement would go down to $300 per title, the ‘turnkey’ or settlement factory defense attorneys will be more than happy to agree to a $600 per title settlement in return for a quick settlement.  

The problem is that Malibu Media asks for settlements for 20+ titles in a lawsuit, so a $600/title x 20 title settlement = a $12,000 settlement.

That same so-called defense attorney will charge $800 for the negotiations ($400 x 2 hours, although 2 hours were not spent on the client’s matter), and the client will pay $12,800 total.  

However, if he hired an attorney who charged $2,400 ($300 x 8 hours), and the settlement ended up being $6,000 ($300/title x 20 titles = a $6,000 settlement), the extra few bucks paid to the attorney to actually negotiate the settlement would save the client a little under $6,000 than if they paid a settlement factory defense attorney.

In sum, the sign that you are dealing with a ‘turnkey’ operation or ‘settlement factory defense attorneys’ is unusually low costs to represent a defendant in a settlement.

NOTE: Don’t get me wrong, I am all for low-cost representation, but in a law firm, you pay for the time that attorney expects to spend on your case. If he is billing $400/hour (this surprised me too), and he charges a flat fee of $800, expect that only two (2) hours will be spent on your case IN TOTAL (including the so-called ‘free’ conversation. I have had too many run-ins with these attorneys and their methods, and all I can say is that they are part of the problem, not the solution.

YOU GET WHAT YOU PAY FOR

There is not much more to this topic than this.  You get what you pay for.  If an attorney charges a certain amount of money, assume he will be doing work on your behalf for that amount of time.  

Now obviously as a response to this article, the attorneys I am writing about will lower the per hour rate they charge and will claim that they are working more hours (as exposing a fraud usually causes the ones committing the fraud to shift to mask their scheme), but it is what it is.

WHY SETTLEMENT NEGOTIATIONS TAKE TIME

Representing a Malibu Media, LLC “John Doe” client in a settlement can take a number of hours.  

The simple steps of preparing the case, sending the letter of representation, opening up communications with the plaintiff attorney, discussing the claims against the client, negotiating a settlement price, writing up the settlement agreement, facilitating the settlement payment (or settlement payments), and seeing to it that the plaintiff attorney timely dismisses the client before the deadline to file an answer with the court passes (and all this time communicating with the client at each step), well, this obviously is not a two-hour representation.

As a hint to what is coming for the Malibu Media, LLC client and our Cashman Law Firm, PLLC, we have been working on shifting our strategy in view of Matthew Sag’s “Defense Against the Dark Arts of Copyright Trolling” article, which we believe will change the way defense attorneys handle Malibu Media, LLC cases.

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.

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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: 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.

Book a Phone Consultation with a Cashman Law Firm Attorney

Why I would not put Kodi on an Amazon Fire TV Stick.

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Amazon Fire TV Sticks and more recently, Amazon Fire TV Media Players (which as of writing this article (3/22/2017) can currently be purchased for $18/month) have been sold for years, and can be modified to permit the installation and use of the Kodi application.  As many tech savvy guys and gals know, Kodi (formerly XMBC) can be used to add pirated content to be downloaded or streamed using the Kodi app.

Dangers of putting Kodi on an Amazon Fire TV Device

DANGERS OF USING KODI ON A MEDIA DEVICE

The problem with using Kodi on an Amazon Fire TV (or any media device, for that matter) is twofold.

  1. You are using a tracked device that you likely registered to your Amazon.com account.
  2. Kodi when installed on the Amazon Fire Stick uses the wireless connection provided to it, exposing the user to copyright infringement lawsuits.

YOUR AMAZON FIRE TV STICK IS TRACKED BY AMAZON.COM

This is a no-brainer.  To activate the Fire Stick, you need to register it with your Amazon.com username and password.  Amazon knows this device belongs to you, and in a number of cases, it even comes pre-programmed to your Amazon account, so why would you use it to view copyrighted software without a license?

All that would need to happen to sue an Amazon Fire Stick user is for a copyright holder to file a copyright infringement lawsuit against a John Doe, and then have the court authorize expedited discovery to allow the copyright holder to send a subpoena to Amazon.com asking it to disclose the identity of the owner of the Amazon Fire Stick.  Amazon would happily comply just to stop you from using their device to pirate or stream copyrighted content without a license.

Of course, there are ways to factory reset the device or deregister it from your account, but that is outside the scope of this article.

KODI, WHEN INSTALLED ON YOUR AMAZON FIRE TV DEVICE, USES YOUR WIRELESS CONNECTION TO RETRIEVE THE PIRATED CONTENT

When you set up your Amazon Fire TV Stick, you enter your wireless username and password.  That way, your Amazon Fire Stick can connect to the internet automatically as soon as you plug it in.

The problem is that any apps you use (here, Kodi), ALSO USES THAT SAME WIRELESS CONNECTION.  This connection has your real IP address exposed and shared with the internet.

It doesn’t take a genius to realize that they can file a copyright infringement lawsuit against the website providing the content, and force it to hand over the web site logs or analytics for a particular page hosting the copyrighted movie you connected to with your exposed IP address when you used your Kodi-enabled Amazon Fire Sitck to view or download that copyrighted movie.  And once they have your exposed IP address, they now have TWO WAYS to sue you in a copyright infringement lawsuit:

  1. Subpoena the ISP who owns that exposed IP address and have them expose the identity of the account holder (the typical way a “John Doe” lawsuit is filed), or
  2. Subpoena Amazon.com to have them expose the account information of the customer who purchased that particular Amazon Fire Stick.

NO, TECHNOLOGY DOES NOT *YET* MAKE IT EASY TO SUE USERS VIEWING ILLEGALLY STREAMED CONTENT

Technology in its current state does not make it easy or convenient for a copyright holder to go through the hassle of suing Icefilms, Putlocker, or any of the MANY providers of copyright-infringing content.  Many of these providers are out of the U.S., and as such, it is difficult (not impossible) to get them to comply with a US-based court order signed by a US federal judge.

Also, it is difficult to determine whether these sites even keep analytics or website logs to determine which IP addresses visit any of the pages on their websites.  As soon as users start getting sued, no doubt these companies will shut off all website logging and analytics, thwarting any copyright holder’s attempts to identify the IP address of the Kodi / Amazon Fire Stick user.

Lastly, it is an uphill battle for a copyright holder to fight a website provider to turn over the website logs exposing who is visiting their websites.  This is why you do not see ANY copyright infringement lawsuits suing John Doe Defendants for the unlawful STREAMING of copyrighted content from software sources such as XBMC or KODI.

For this reason, at the time I am writing this article, I cannot see how a user would realistically be sued for using Kodi on an Amazon Fire Stick.  However, as technology advances and tracking methods improve to the point where a copyright holder will be able to identify the IP address accessing a website containing copyrighted materials, the threat of being sued for streaming content will increase.

Click here for more details on the topic of “Can I be caught and sued for copyright infringement for streaming movies.”

A QUICK NOTE ABOUT POPCORN TIME: Popcorn Time is a piece of software that uses BITTORRENT to acquire the movie title in order to serve it for free to their end user.  Bittorrent lawsuits account for most, if not all of the copyright infringement lawsuits, and thus Popcorn Time (even though it streams movies) is not included under the category of “hard to catch users for infringement.”

COMMON SENSE. DON’T USE KODI ON A FIRE TV STICK.

Even though I just told you that you will likely NOT be sued for using your Kodi-enabled Amazon Fire TV Stick to view pirated content, I still caution strongly against using it without some additional steps.

Why would you use a device that is registered to your name?  Do you think that Amazon.com is your friend and would protect you if they realized you were using their device to pirate movies and music?

And, why would you use a device that could expose your IP address to the world?  Your connection to the internet would create a trackable line between your internet account and the server hosting the pirated content.  Do you really think that your ISP isn’t snooping on you to see whether you are using their bandwidth for legal or illegal purposes?  If somehow copyright holders figure out how to get the list of IP addresses who downloaded or streamed a particular movie, do you really want to risk being sued for $150,000 for copyright infringement?

Common sense.  Even if you will likely not be tracked or caught, DO NOT use devices which connect to the internet without using an encrypted connection.  Your Kodi-enabled Amazon Fire TV Stick is one such device.

WAYS AROUND THE IP ADDRESS EXPOSURE PROBLEM (USING A VPN)

Obviously this article is meant to alert users as to the dangers of using a Kodi-enabled Amazon Fire TV devices.  It is not to teach you how to break the law and enable Kodi on your device. (I cannot believe Amazon is actually selling this ebook).

For common sense purposes, if you are going to do anything that exposes your IP address to the public, use a VPN.  A VPN is a Virtual Private Network which allows an individual to obscure his real IP address by connecting to the content desired by way of one or more servers.  I will not go into how they work here, but for reputable VPN companies who do not keep logs on your activities, TorrentFreak writes a report every so often, and that report is a good resource.

VPNs that keep your identity and your IP address private are PAID VPNs.  Free VPNs have been known to turn over their user’s account information (as have various paid VPNs as well, which is why I suggested TorrentFreak’s list).

If you were willing to learn how to program your router to route your internet connection through your VPN (most VPN providers teach their customers how to do this), then using your Kodi-enabled Amazon Fire TV device would be safe, and a user who uses this method would not need to worry or fear about being sued for connecting to the internet using the Fire Stick.

Of course, keep in mind that it is still a dumb idea to register that same Amazon Fire TV Stick with your real Amazon.com account information.  There might come a time where technology advances to the point where Amazon start ‘not liking’ their users using their Fire Stick for piracy purposes.  Thus, if you were to deregister the Fire Stick, or to purchase it without connecting it to your account (e.g., checking ‘buy it for someone else’) when you check out, that will stop Amazon.com from preprogramming the Fire Stick with your account information.  But still, you should still be cautious using an Amazon Fire Stick with Kodi (even with a VPN) because Amazon themselves might devise a way to track their own devices (if they have not done so already).

IN SUMMARY

In summary, Amazon Fire TV Sticks and better yet, Amazon Fire TV Media Players are wonderful pieces of technology.  I own one, and current Amazon Fire TV Sticks even have Alexa built into them (a cool feature).  With an Amazon Prime Subscriptionir?t=torren01 20&l=pf4&o=1 (we replaced our Netflix subscription with this to get the free shipping and other benefits), you can view literally THOUSANDS of videos from the Fire TV Stick or Media Player.

The Fire TV Stick itself is HDMI enabled, which means that it can plug into any old monitor, and that monitor will become an Amazon movie studio.  We can even connect our Bluetooth speakers (think, Amazon Echo or ‘Alexa’) to the Amazon Fire TV Stick, and we have theater-quality movies and binge worthy TV shows, all available to be played in our living room.

If I were a pirate, I would probably NOT put Kodi on my Amazon Fire Stick, even if I set up my router to route all internet traffic through a paid VPN.  I personally simply don’t trust Amazon.com that they will not at some point become proactively ‘anti-piracy’, and I wouldn’t want to be the recipient of a subpoena letter indicating that I was sued for using my Fire TV Stick in an unlawful way.

Nevertheless, if you are a regular reader of the TorrentLawyer website, you would not either.  However, hopefully this article will somehow go out to people searching for “Kodi-enabled Fire TV Sticks,” and we will at least teach them that watching Kodi this way is a bad idea.

Final Note, and Off Topic:  I am not a Roku guy, simply because my Amazon Fire TV was given to me as a gift and I love the device. However, if I were to purchase a device anew, I WOULD probably choose the Roku Premiere+ Streaming Media Player simply because Roku is known to upgrade their devices every year, and Roku is simply a better company focused on making Roku Media Players (similar logic: I would go to a Chinese Food Store to buy Chinese Food). If I was just comparing an Amazon Fire TV Stick (considering that it has Alexa on it) and a plain Roku, since I have do have unlimited Amazon movies through Amazon Prime, and the Amazon Fire TV devices are supposedly faster, I’d stick with the Amazon.  If I did not have Amazon Prime, I’d go with the Roku.  Whichever device I had, however, I WOULD NOT PUT KODI ON IT.

When is it too late to hire a lawyer in a John Doe lawsuit?

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ISP Subpoena Timeline & Anonymity Timeline

The best time to hire an attorney in a “John Doe” copyright infringement lawsuit is when you receive a subpoena notice from your ISP.

Even if you are not planning on filing a motion to quash, this is a copyright infringement case, and you need time to prepare for what will happen should you be named and served.

Hiring an attorney while you are still a “John Doe” gives you plenty of thinking time to get your affairs in order (for example, managing your online reputation by adjusting privacy settings on your social networking sites), and it gives you time to get your financial affairs in order.

DO NOT WAIT TO HIRE AN ATTORNEY UNTIL AFTER THE ISP HANDS OVER YOUR INFORMATION TO YOUR PLAINTIFF ATTORNEY.

There are a lot of things that you can accomplish before your ISP hands out your information.  You are anonymous at this point, and you can take advantage of that anonymity.

If you want to negotiate a truly anonymous settlement, when you receive your subpoena notice from your ISP is the time to do it.  The plaintiff attorney has done almost no research on your John Doe entity, and thus the settlement amounts will be low because there are no legal fees the attorney will want to add to the settlement amount to be paid for time spent trying to proceed against you.

Also, if your attorney is successful in negotiating an anonymous settlement (this may or may not be a good idea; talk to me and I’ll explain why), the benefit of doing it now when nobody knows who you are is that your plaintiff attorney will cancel the subpoena as to your John Doe entity once the settlement is complete.  That way, even he won’t ever know who you are (and thus you won’t have to worry about follow-up lawsuits, or the ‘copyright troll’ attorney asking you for more money later on, etc.).

ABSOLUTELY DO NOT WAIT UNTIL YOU ARE NAMED AND SERVED AS A DEFENDANT IN THE LAWSUIT.

Once you are named as a defendant in the lawsuit, your “John Doe” status is over, as is your anonymity.  Not only will the court know who you are, but at this point, the INTERNET will know who you are.  Forever, spiders and crawlers who search and index the legal sites and the lawsuit sites will index your name as being implicated as a defendant in that particular lawsuit.

Even if you settle the case, your reputation will be forever tarnished.

Even if you fight the case AND WIN, your reputation will forever be tarnished.

Once you are named and served, you have a ticking time bomb deadline waiting around the corner, where you will be forced to file an “Answer” with the court, or else you will be in DEFAULT.

Trying to negotiate a settlement after being named and served is like trying to negotiate with a gun to your head.  It is doable (and we have done it many times), but there is NO LEVERAGE.  The plaintiff attorney at this point is emboldened because there is nothing that he needs to do except wait.  He is under no pressure to negotiate at this point, because the law gives his client statutory damages if the infringement is willful.  Even if his client does not get the $150,000 statutory damages jackpot, if the named defendant defaults and the court awards minimum damages ($750), because the plaintiff attorney is the prevailing party, he will be awarded his attorney fees (which in most cases will be over $2,000 — higher than the commission he would have received had he accepted a settlement from you).

THUS, THERE IS A FINANCIAL INCENTIVE FOR THE PLAINTIFF ATTORNEY *NOT* TO SETTLE AFTER NAMING AND SERVING A DEFENDANT

Lastly, if you hire an attorney after you are named and served, practically, the attorney will be under pressure to get everything in order and filed before the deadline.  Please do not do this to your attorney.

We do not do this, but most attorneys will charge a premium or a higher hourly rate if there is a “days to a default” deadline associated with the work to be done.  The reason for this is that the attorney will need to drop whatever he is already working on and throw your case to the front of the pile (usually at the cost of accepting other business).

If you hired an inexperienced attorney after being named and served, the work you will get in return for the money you paid will be lower quality, because the attorney will not have the time to research the best legal strategies, arguments, or defenses available to your case, and in copyright infringement lawsuits, your defenses need to be raised in your answer or else you waive them.

For these reasons, for your own sanity, for your lawyer’s sanity, and for your own benefit — please DO NOT wait until you are named and served before hiring an attorney.  Do it immediately when you learn about the lawsuit from your ISP.

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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 [email protected], 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.

A Thank You! to bloggers who have made our site possible.

by
tophalfb

This week we moved past 1 MILLION views of this website, and yet, I missed it.  As we head into the weekend, I realize that a lot has happened this week, and I wanted to take a moment to give credit where credit is due.

Were it not for an active community of attorneys, bloggers, and activist associations such as the Electronic Frontier Foundation (EFF.org), most of us would still be in the dark, unaware as thousands of families have their life savings taken.

I want to especially thank “Sophisticated Jane Doe” of Fight Copyright Trolls (https://www.fightcopyrighttrolls.com), who has been an endless supply of information, support, and behind-the-scenes research into everything that is going on with the copyright trolls.

I also want to thank DTD from the Die Troll Die website (https://www.dietrolldie.com), because without his efforts, his entertaining blog posts, and the time he has taken to read so many cases and rulings, much would have been lost.  I also want to comment that when these cases began in 2010 and there were thousands of “John Doe” Defendants filed in one bittorrent-based copyright infringement case, it was DTD who filed endless “anonymous John Doe” motions with the court that not only educated judges, but broke a number of cases simply by telling the truth of what those copyright troll attorneys were doing when the judges were not looking.

I also want to thank the attorneys with whom I speak to regularly, and with whom I correspond with and e-mail both over Twitter, over WhatsApp, and over various Listservs.  You know who you are.  You are an amazing resource, and without you, there are countless examples of where I would have been stumped without your assistance.

And to the growing list of attorneys who practice in this area of law who contact me asking how to do something, or ask me to explain who is who, I appreciate being of service.  It is a pleasure working with each of you, teaching you what I know, and sharing news about various copyright holders, ‘copyright trolls’, and strategies which have worked and flopped for each.

Lastly and possibly most importantly, there are many of you on Twitter that I would like to thank, and you know who you are.  Our area of law creates an ‘echo chamber’ on Twitter.  In that echo chamber, I read every post you write, I appreciate your feedback, I appreciate your insight, and without you, I would have missed out on a number of lawsuits and topics which happened in one set of courts while I was representing clients in another set of courts.

So thank you, from the bottom of my heart.  I appreciate everything you do.

-Rob

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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 either e-mail me at [email protected], or 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.

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