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.
THIS HAS BEEN A LAWSUIT-NEUTRAL ARTICLE WRITTEN FOR THE TORRENTLAWYER UNIVERSITY.
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