RIGHTSENFORCEMENT (New MPAA Movies Gone Copyright Troll)

CEG-TEK-DMCA-Scare-Letters

RightsEnforcement.com (Carl Crowell and his ilk) have been quiet lately as far as the DMCA notices go, but the movie lawsuits press on. Now they have NEW MOVIE TITLES that they will be suing on in the coming weeks and months.  It is worth mentioning that since I began writing about RIGHTSENFORCEMENT (I have to put their name in caps since it just looks awkward when writing it out), the company got quiet — not because of me or anything I wrote on the topic — but now I understand that they were spending their time continuing the Voltage Pictures business model and obtaining new contracts with new movie companies with the intent of ‘enforcing’ or suing John Doe Defendants who download those films (and as always, recruiting new ISPs to send their DMCA notices, whether by force or by ‘carrot and stick’).

JULY, 2017 –UPDATE– : Carl Crowell’s Rights Enforcement client list is growing.  New RightsEnforcement Movie Clients for Future Copyright Lawsuits as of July, 2017 have now been posted here.

Also, to learn more about RIGHTS ENFORCEMENT and everything I know about them to date, click here.

RIGHTSENFORCEMENT.com | Screenshot 1

RIGHTSENFORCEMENT represents a ‘common troll’ entity which enforces the copyright rights of other companies who contract with it.

QUICK BACKGROUND: HOW THE SCHEME WORKS.

How I understand this works (source: Dallas Buyers Club lawsuit against copyright trolls Voltage Pictures, Inc., a.k.a., Dallas Buyers Club, LLC).  A common troll entity (e.g., Voltage Pictures, Guardaley, MPAA, whoever) contacts the production company for some failed movie that did not make expected profits in the theater.  They license the rights to enforce the copyright owned by that movie company.  This “common troll” entity would then set up shell entities masquerading as the movie company.  These shell entities are LIMITED LIABILITY COMPANIES, which means that if there is a lawsuit against them, or if they get hit for damages, the damages are limited to the limited liability company itself, and not the criminals ‘behind the veil’ of these companies.

This shell entity files multiple “John Doe” lawsuits across the US using German Company Guardaley (and it’s US shell company counterparts) to provide “expert evidence” that copyright infringement happened via the bittorrent networks.  They ask the federal judges to unmask the identities of the ISP subscribers who were assigned the IP address which was involved in the bittorrent lawsuit, and they contact that defendant and ask for a multi-thousand dollar settlement for the ‘loss’ they suffered because of their download.

What movies will this ‘common troll’ sue for in the future?

Some of the new movies on the RIGHTSENFORCEMENT Client List are:

  • Larceny (with Dolph Lundgren, “I will break you.”)
  • I Am Wrath (with John Travolta)
  • Vengeance (with Nicolas Cage)
  • USS Indianapolis (with Nicolas Cage)
  • Rage
  • Rumble
  • Undisputed 4
  • A Tale of Love and Darkness

RIGHTSENFORCEMENT.com | Screenshot 2

  • Bedeviled
  • Christmas All Over Again
  • Killer Joe
  • Lady Bloodfight
  • Maximum Conviction
  • Navy Seals: The Battle For New Orleans
  • Playing Cool
  • The Company You Keep

RIGHTSENFORCEMENT.com | wwe-studios-finance-corp-eliminators-movie-lawsuit

RIGHTSENFORCEMENT.com | me2-mechanic-resurrection-lawsuit

RIGHTSENFORCEMENT.com | Screenshot 5 | salt-and-fire | cook-productions-mr.-church

  • The Humbling
  • Salt and Fire
  • Queen of the Desert
  • Close Range

RIGHTSENFORCEMENT.com | Screenshot 6

  • Good Kill
  • Charlie Countryman
  • Sniper: Special Ops
  • Life on the Line
  • Cabin Fever Reboot
  • Return to Sender

RIGHTSENFORCEMENT.com | Screenshot 7

  • Countdown
  • Blunt Force Trauma, and
  • Wild Horses

Are these famous actors or producers involved in the copyright trolling scheme?

Likely not.  It has become apparent that the actors in the movie have absolutely nothing to do with RIGHTSENFORCEMENT, or the copyright trolling that the production company has chosen as their alternate path to making money from the film (their primary method of selling movie tickets flopped).  In fact, the actors are usually the victims of both the piracy and the lawsuit, as they benefit from NEITHER.

Is Carl Crowell (the figurehead of RIGHTSENFORCEMENT) behind these lawsuits?

Again, likely not.  It is also now apparent that Carl Crowell alone (the ‘owner’ of RIGHTSENFORCEMENT and the RIGHTSENFORCEMENT.com website) is likely not the businessman / entrepreneur behind the acquisition of the movie titles.  Rather, he and his RIGHTSENFORCEMENT company are most logically patsy figureheads, as was Keith Lipscomb and his now defunct law firm.  (On a side note, after all the years we thought that Lipscomb was the villain for the Malibu website, I wonder if he feels like a patsy as well — used and abused by the more powerful copyright trolls, or did Lipscomb make out with windfall profits?  It would be interesting to speak to him and have him give his side of the story to ‘spill the guts’ of who these guys behind the RIGHTSENFORCEMENT company and actually are.)

So as much as that was ‘tongue in cheek’ (cliche which has a different meaning if you knew anything about the Malibu lawsuits Lipscomb was filing), realistically Lipscomb is bound by a number of strong contracts where he could probably lose his law license for breach of attorney-client privilege if he disclosed the identity of his ‘client’ — the one who has been filing all of these lawsuits.

If not him, then who? (think, “who stole the cookie from the cookie jar?”)

We don’t need Lipscomb to see who is actually behind these lawsuits.  It is becoming apparent (at least in my observation) that the entity behind Carl Crowell’s RIGHTSENFORCEMENT organization is none other than the MOTION PICTURE ASSOCIATION OF AMERICA (MPAA) and their lobbyists.

I laugh at myself whenever I say this out loud because the idea that such an apparent ‘legitimate’ organization would engage in such banal legal tactics to monetize their copyrights to compensate for having made failed movies (“floppers”) in the theaters makes me just shake my head in disgust.  Then, having learned over the last two years that the same organization is affiliated with OR HAS DIRECTED the pornography lawsuits across the US since 2012 just makes me cringe.  “It is just too horrible.”

Why I believe the MPAA/RIAA are behind the movie lawsuits.

I covered why I actually think the MPAA and RIAA are behind the movie lawsuits in depth here, but I’ll quickly recap.

Look at the evidence.  The RIAA (a similar but very related organization) was involved in so many lawsuits prior to 2010.  They sued and sued, and then all of a sudden in 2010, they went SILENT.  The MPAA also sued, my best understanding is using Voltage Pictures, and a bunch of other companies with The Expendables lawsuits, etc., all using the law firm Dunlap Grubb, & Weaver, LLC to file their lawsuit.  When those mass bittorrent lawsuits failed, it appears to me (based on the fact that the same Guardaley company was involved in both the movie AND porn lawsuits) that the MPAA and RIAA then encouraged the pornography industry to file lawsuits on their behalf to make headway in the court system to change or break copyright.

I know I wrote “break” copyright, but I have had some time to think about it, and while I am still befuddled by the thought that the MPAA would scheme to have the porn companies file lawsuits for their own benefit to change copyright law, I wonder if they did so because they wanted to create change in the courts because they couldn’t get it done in an ineffective lame Congress.

Anyway, this is still a mystery to me, and it is bigger than me, and I am not the one with authority or power to break the story, expose the MPAA, or investigate the MPAA or the RIAA with any credibility other than my best guesses based on what I see come out in the lawsuit filings and disclosures.  It simply must be noted that with the exodus of Lipscomb from the adult film lawsuits and the merging of the RIAA (now embodied in Rightscorp) and the MPAA (with the movie titles) all coming together in Carl Crowell’s RIGHTSENFORCEMENT entity (which is growing in power and in licenses to movie production companies who have signed on with them), I must assume legitimately that there must be a REASON why these movie companies are obediently ‘falling in line’ and signing up with Crowell’s organization.  That reason cannot be that there are so many greedy movie production companies in Hollywood who have all of a sudden embraced copyright trolling as a legitimate copyright monetization business strategy. Rather, I believe that reason is that THE RIGHTSENFORCEMENT ORGANIZATION AND ITS MOVIE COMPANY CONTRACT DOES NOT BELONG TO CARL CROWELL, BUT TO THE MPAA/RIAA ENTITIES.

ME2 Utah Subpoenas from CenturyLink Are Coming Due.

UT ME2 Productions | Utah ME2 Settlement Letters Sent by Todd Zenger

Subpoenas Sent to CenturyLink to expose identities of ME2 Utah Defendants due 4/28.

ME2 Utah cases have been blazing since they were filed early in March, and now the subpoenas for those cases are coming due this week.

Who is the attorney for the ME2 Utah cases?

The ‘copyright troll’ attorney in Utah who filed these cases is Todd Zenger (“Todd E. Zenger”), and he works for Kirton McConkie in Salt Lake City, Utah. Any e-mails coming from “[email protected],” or calls from his “801-328-3600” phone number (or any 801-328-XXXX phone number should cause you to be wary that you have a Utah ME2 copyright troll trying to scare you into settling with him for thousands of dollars.

Are Utah ME2 Productions, Inc. cases any different from those filed in other states?

Really, no.  I have already written much about the ME2 Productions, Inc. cases, and the Utah ME2 cases are no different from the cases filed in other states. The following articles should be helpful in understanding the ME2 Utah cases as well:

EVERYTHING YOU NEED TO KNOW IN ONE PAGE ABOUT YOUR ME2 PRODUCTIONS, INC. “MECHANIC:RESURRECTION” LAWSUIT AND ISP SUBPOENA.

Just like the other cases, the Utah ME2 Productions, Inc. cases are suing for copyright infringement based on the the illegal download of the Mechanic: Resurrection movie, starring Jason Statham and Jessica Alba. The lawsuits are all copyright infringement lawsuits filed in the Federal Courts, and each lawsuit sues for statutory damages of $150,000 (but don’t let that large number scare you, because baked into copyright infringement law is the concept of ‘minimum statutory damages’ as well).

Accused ME2 Utah-based internet users are made aware of these cases when they are sent a letter from their ISP (CenturyLink), which informs them 1) they are implicated as a “John Doe” Defendant in this case, and 2) the ISP is bound by a subpoena to share the account holder’s contact information (and relevant information about their IP address’ involvement in the case) on a certain due date unless the subscriber files an objection with the court (referring to a “motion to quash”).

Why is this article relevant now (and for the next week or so)?

The reason why I am writing this article is because starting THIS FRIDAY (and continuing for the next week), the ME2 Utah-based subpoenas sent to CenturyLink demanding that they turn over the identities of the Utah ME2 John Doe Defendants are coming due. Most relevant, the next deadline is this Friday, 4/28.

What should I expect after 4/28 once CenturyLink complies with the subpoenas?

The expectation following this 4/28 deadline is that Todd Zenger will start sending out settlement demand letters to Utah ME2 John Doe Defendants, explaining that they have been sued for $150,000, and that their ISP has identified them as being the downloader. That their ISP identified them as the infringer is actually not true, as the ISP will have only identified that their IP address was ‘in the room’ when bittorrent downloading was happening.

However, Todd Zenger’s cases do not state that each John Doe Defendant is the actual infringer, nor does he provide evidence in the form of a PCAP file that any of the Utah ME2 defendants actually committed copyright infringement or downloaded a large enough piece of the movie to be considered “substantially similar” to the copyrighted film. However, it will have to be up to the judges (and us attorneys) to inform them that Todd Zenger is not in possession of the Guardaley evidence he allegedly claims to have.

Who are the federal judges assigned to the ME2 Utah Cases?

The Utah ME2 cases (thus far) are evenly spread between the following judges.  I wouldn’t be surprised if moving forward, one judge, e.g., Judge Evelyn Furse will take over the other cases to have uniform decisions across the Utah ME2 cases.

Judge David Nuffer:
ME2 Productions v. Does 1-23 (Case No. 2:17-cv-00198)
ME2 Productions v. Does 1-12 (Case No. 2:17-cv-00224)
ME2 Productions v. Does 1-29 (Case No. 2:17-cv-00190)

Judge Paul M. Warner:
ME2 Productions v. Does 1-26 (Case No. 2:17-cv-00199)
ME2 Productions v. Does 1-14 (Case No. 2:17-cv-00225)
ME2 Productions v. Does 1-22 (Case No. 2:17-cv-00189)

Judge Evelyn J Furse:
ME2 Productions v. Does 1-25 (Case No. 2:17-cv-00179)
ME2 Productions v. Does 1-25 (Case No. 2:17-cv-00169)
ME2 Productions v. Does 1-23 (Case No. 2:17-cv-00178)
ME2 Productions v. Does 1-25 (Case No. 2:17-cv-00158)
ME2 Productions v. Does 1-23 (Case No. 2:17-cv-00157)
ME2 Productions v. Does 1-26 (Case No. 2:17-cv-00168)

Judge Jill N. Parrish:
ME2 Productions v. Does 1-22 (Case No. 2:17-cv-00200)

Judge Dustin B. Pead:
ME2 Productions v. Does 1-27 (Case No. 2:17-cv-00191)

Judge Ted Stewart:
ME2 Productions v. Does 1-24 (Case No. 2:17-cv-00223)

What are your options in defending or resolving claims in a ME2 Utah-based case?

If you have read this far, you are likely one of the John Doe Defendants in this case, and thus here are your options on how our Cashman Law Firm, PLLC (or any other competent copyright litigation attorney) can help you in this case.

OPTION 1: FIGHT

In this option, your attorney would fight this case on your behalf. Since the ME2 scam has been exposed, the inherent weaknesses in Todd Zenger’s case are now well known. This option is more expensive than the other options, but it is probably the most satisfying option when you win and ask for attorney fees from ME2 Productions.

OPTION 2: SETTLEMENT NEGOTIATIONS

Settlement negotiations does not mean that you downloaded the movie or that you are guilty of copyright infringement. Rather, it simply means that you want to pay to have the plaintiff attorney dismiss you from the lawsuit. This option can be used by both ‘guilty’ and ‘innocent’ defendants. While I do not recommend an innocent defendant pay ANYTHING to settle the claims against him, I do not judge defendants when they choose this option.

OPTION 3: “NO SETTLEMENT REPRESENTATION”

This is the discounted “no settlement” representation route that I discussed here. In the span of 2-3 hours, I would consult with the client, send over a letter of representation to the plaintiff attorney (to stop him from contacting the client directly). I would then draft a letter to the plaintiff explaining that my client did not do the download, and that we are not interested in anything other than a walkaway settlement, meaning that my client pays no settlement. The purpose of this representation is to put Todd Zenger on notice that my client is not the infringer he is looking for.

OPTION 4: “IGNORE” ROUTE REPRESENTATION

The ignore route is best described as ‘playing chicken.’ I best described the “ignore” route, and how it differs from the “no settlement representation” route here. The assumption with the “ignore” route is that Todd Zenger is not yet naming and serving defendants in this case, so you would hire our Cashman Law Firm, PLLC to monitor the case for you. We would send over a letter of representation indicating that we are representing you in the case, but we would not engage in settlement negotiations.

The intended client for the ‘ignore’ route is the innocent client that wishes to have a more ‘hands on’ engagement with their case over the “no settlement” representation letter route, where their attorney is actively monitoring the case and having active discussions with the plaintiff attorney. Both ‘guilty’ and ‘non-guilty’ defendants can utilize the “ignore” route, as this option is adjustable based on the circumstances of the client. If Todd Zenger decides to start naming and serving defendants, a ‘guilty’ client would likely have me open up settlement negotiations on his behalf, whereas a non-guilty client would instruct me to not settle and adhere to the ‘ignore’ strategy. Obviously getting named and served while in this strategy would be cause to decide whether to shift strategies to the “fight” or “settle” strategy, which is fine.

OPTION 5: ARGUE “MINIMUM STATUTORY DAMAGES” REPRESENTATION

I discussed the “argue minimum statutory damages” representation option last night in this article. The purpose of this option is to take the settlement negotiations away from a misbehaving plaintiff attorney. Instead of negotiating a settlement (where the plaintiff is asking for too much money), we would file an answer with the court admitting infringement, and we would then make the case for the judge to award minimum statutory damages of $750.

The intended client for the “minimum statutory damages” representation route is a client who did the download and either does not want to go through settlement negotiations, or who wants to take settlement negotiations out of the hands of the plaintiff attorney / copyright troll and leave the damages up to the judge to decide. Obviously since we are admitting guilt in this option, it is appropriate for the client to have done the download to use this strategy.

However you decide to proceed, if I can be of assistance or answer any questions about your ME2 Utah case, please let me know.

*UPDATE (APRIL, 2017)* ME2 PRODUCTIONS INC. (FAQ) PAGE NOW UP.

*UPDATE (JULY, 2017)* SECOND WAVE OF LAWSUIT SUBPOENAS sent to CenturyLink ISP subscribers, and are due on 7/14/2017.


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.

    STRATEGY: Have attorney argue for Minimum Statutory Damages ($750+fees)

    Asking for $750 Minimum Statutory Damages is not as scary as you might think.

    Minimum statutory damages for copyright infringement is $750. Copyright trolls and their attorneys scare accused downloaders with the $150,000 number in EVERY SINGLE SETTLEMENT DEMAND LETTER. But baked into the copyright laws is that ‘minimum statutory damages’ number, which is $750.

    If you think about it, if you are caught drunk driving (a dangerous act where you can kill people), in Texas, you can be fined a few hundred to two thousand dollars and spend between three and 180 days in jail. If you steal something or are caught shoplifting (or you are caught purchasing or accepting stolen property), in Texas you can be charged with larceny and would have to pay a fee as low as $50 or as high as a few thousand dollars depending on the cost of the goods stolen.

    Minimum Statutory Damages | Strategy to Admit Guilt
    succo / Pixabay

    When you “steal” copyrighted content by downloading it via bittorrent or streaming it via some ‘tube’ website or using software such as Kodi, you are depriving the copyright holder of the cost of the movie ticket (~$12) for the movie you did not see in the theater, or the cost of the DVD (~$30) that you did not purchase on Amazon.com because instead you pirated the film. These are what are called “ACTUAL DAMAGES“.

    STATUTORY DAMAGES are something else. The law says that the copyright holder does not need to prove actual damages, and can rely on damages that the law thinks he is entitled to under the copyright laws. Baked into statutory damages is the concept of “minimum damages” which easily includes the theft of a video or a movie via a bittorrent download.

    So when a plaintiff attorney / copyright troll scares you with that $150,000 number, understand that if you simply hung up the phone with that copyright troll and hired our firm to ‘file an answer with the court admitting guilt and arguing for minimum statutory damages’, there is a strong case for your judge to award minimum statutory damages to the plaintiff attorney.

    What an “Argue Minimum Statutory Damages” strategy would cost.

    But what exactly would the minimum statutory damages look like? Obviously, add $750 for the minimum statutory damages itself.

    +$750 minimum statutory damages

    Then, copyright laws give the ‘winner’ of the lawsuit the right to collect their attorney fees from the ‘losing’ side. Since we would quickly and actively file an answer on your behalf admitting guilt, the plaintiff attorney would not have had any out of pocket costs except the $400 filing fee (which in most cases is split between 10-15 defendants), so add another $40.

    +$40 filing fees and costs split among the ten ‘John Doe” defendants

    Then, the plaintiff attorney spent “a few hours” filing the boilerplate complaint (he has done this probably 100+ times already, so it didn’t take him a long time to file your lawsuit) and providing the court the documents he has already done many times already. Thus, estimate another $750-$1500 for the attorney fees to the ‘prevailing party’ (the ‘winner’).

    +$1,500 attorney fees to the prevailing party (assuming that much time was even spent on the case).

    ———————————————————–
    Then add everything up.
    ———————————————————–

    + $750 minimum statutory damages
    + $40 filing fees split among defendants
    + $1,500 attorney fees (if even that much)
    ———————————————————–
    Total Estimated Cost: $2,290 for having your attorney ‘plead guilty’ on your behalf.

    What about the fee to your own lawyer? Here is what you pay for:

    STEPS YOUR ATTORNEY WOULD TAKE TO ARGUE “MINIMUM STATUTORY DAMAGES”:

    Here are the steps we would take on your behalf in order to implement the minimum statutory damages strategy.

    1) We send a letter to your plaintiff attorney and file a notice of representation with the court.
    2) We open up discussions with the plaintiff attorney. Discuss evidence. If relevant, discuss settlement.
    3) If the attorney is being unreasonable in the settlement negotiations, we cut off settlement negotiations and file an answer with the court admitting guilt. In our answer, we make argument for minimum damages.

    Who would benefit from an “argue minimum statutory damages” strategy?

    Now obviously the “argue minimum statutory damages” strategy is best used with an accused downloader who has actually done the download and does not wish to defend against a copyright infringement lawsuit (e.g., he does not have a ‘clean’ hard drive, and/or the infringing file is still on his hard drive).  This strategy is also best used in the situation where the plaintiff attorney / copyright troll is being greedy, unreasonable, or abusive in the settlement negotiations.  There is no need to argue with an uncooperative copyright troll if you can get a comparable result by simply admitting guilt and arguing for minimum statutory damages.

    Is this an effective strategy even if you did not do the download?

    NO.  1) There is no reason to settle if you did not do the download.  2) This strategy involves admitting guilt.  The purpose of this strategy is simply to take the settlement negotiations out of the hands of the plaintiff attorney / copyright troll.

    If you did NOT do the download, there are other less expensive strategies, such as the “no settlement” representation strategy or the “ignore” route.  Alternatively, your attorney can file a motion to dismiss and dispense of the lawsuit quickly based on the inherent weaknesses of the case.

    Why would someone guilty of copyright infringement use the “argue minimum statutory damages” strategy?

    Plaintiff attorneys / copyright trolls seem to have their own calculus as to who they ‘let off’ and who they ‘nail’ in a settlement negotiation.  In other words, if they like you (or your Cashman Law Firm, PLLC attorney has leverage over them), they’ll give you a good settlement deal.  If they don’t like you, or if you fit into a category which copyright trolls believe that you have a vulnerability exposed, they can and often *WILL* take advantage of you (e.g., if you are elderly, or if you are a war veteran, or if they believe you can pay a higher settlement, etc.).

    The strategy of having your attorney argue for minimum statutory damages is a good way to take the power away from the copyright troll.  If the plaintiff attorney is taking advantage of your situation, you can take the settlement negotiations away from him.  In essence, it is forcing the copyright troll to accept a lower settlement amount than he would have proposed in a settlement negotiation.

    To embarrass a troll.

    Arguing for minimum statutory damages is the reason someone who did the bittorrent download would employ this strategy.  However, there is the additional nudge or motivation in doing this strategy — to expose the tactics of the copyright troll.  If a plaintiff attorney is using abusive tactics, or he is hiding his tactics behind a “FRE 408” header on his e-mail, you can use this strategy to expose his conduct to the judge.

    Under the Federal Rules of Evidence (FRE 408), settlement negotiations are not admissible in court, unless they are brought into evidence to show bias, prejudice, or some other valid reason (e.g., abusive conduct or harassment in the context of settlement negotiations).  There is a lot of latitude for an attorney who is filing an answer admitting guilt and asking the court to grant him his wishes to quickly and efficiently terminate the proceedings.  Within this latitude is the ability for the attorney to share with the judge the contents of the settlement negotiations prior to filing the answer in order to help the judge understand that the plaintiff attorney was employing abusive settlement tactics in order to resolve his $12 lost movie ticket / $30 lost DVD sale claim.

    Would our firm also argue the other inherent weaknesses of the plaintiff’s case in an “argue minimum statutory damages” strategy?

    Honestly, it is not needed.  There are a number of additional strategies that can be employed to protect an accused defendant (especially since the plaintiff attorney likely does not have actual evidence of copyright infringement), but the goal in the “argue minimum statutory damages” strategy is simply to quickly dispose of the lawsuit with the minimal amount of costs to the defendant.

    Obviously there *are* inherent weaknesses in the copyright troll’s case which can be addressed in a more comprehensive defense strategy (e.g., by filing a motion to dismiss with the court) and then if that fails, filing an answer admitting guilt and arguing for statutory damages.  However, this is not the purpose of this strategy.  (As to the motion to dismiss because of the other issues inherent to the case, e.g., improper joinder, no evidence, improper pleadings, etc., I will be writing about these weaknesses in coming articles.)

    IN SUMMARY, CONSIDER ARGUING FOR MINIMUM STATUTORY DAMAGES (IF YOUR TROLL IS MISBEHAVING).

    If your copyright troll is being unreasonable in settlement negotiations, consider having your attorney (us, or whoever you use) file an answer with the court admitting guilt and argue for minimum statutory damages. Even if you were caught doing the download, you don’t need to give in to a ransom settlement. Copyright law has already anticipated your infringement, and there is a strong likelihood that a judge (especially one who sees many ‘copyright troll’ lawsuits from this same plaintiff) knows the scam these copyright holders are running, and they will be sympathetic to a defendant who employs this strategy.  Why?  This is a quick resolution to a copyright troll who is taking advantage of a downloader and asking for more than he should, and judges love ‘judicial economy’.

    Obviously if you have any questions about what I have written here, please feel free to SPEAK TO ME and ask me questions about your case. There are many ways to take care of the claims against you without giving in to the settlement demands of the plaintiff copyright troll. Also, each defendant has different circumstances, so this article (or more generally, ANYTHING I write in this blog) is not meant to be legal advice or magical pills for you to get out of this lawsuit scott free. Trust that I have spent literally SEVEN YEARS fighting copyright trolls, and so there are many ways to approach your case. Admitting guilt and making the argument for minimum statutory damages is simply one more tool we have at our disposal to handle a plaintiff attorney who is not ‘playing nice.’

      “No Settlement” vs. “Ignore” Route Representation

      Tweaking an old strategy for a more effective one.

      For those of you who speak to me on Twitter, I am working on implementing a new strategy based on Matthew Sag’s “Defense Against The Dark Arts of Copyright Trolling” paper.  Most relevant to this is finding representation for John Doe Defendants who did not do the download and who rightfully do not want to pay settle the claims against them.

      Our Cashman Law Firm, PLLC for years has represented clients in what we called “ignore” route representation, where we would not settle the claims against the John Doe clients (unlike settlement factories who did).  While the “ignore” route representation strategy was very effective for many years, in recent years where plaintiff attorneys name and serve defendants, it has lost some of its effectiveness.

      The need for a low-cost strategy to represent innocent defendants.

      Come Matthew Sag’s “Defense Against The Dark Arts of Copyright Trolling” paper, where he suggests that attorney provide a low cost service to innocent defendants to “call the copyright troll’s bluff,” so to speak.  Our Cashman Law Firm, PLLC is working on how to implement the strategy, and we are looking to focus it on those who did not do the download.

      THE PROPOSED “NO SETTLEMENT” REPRESENTATION STRATEGY

      COMPARING IT TO OUR FORMER “IGNORE” ROUTE REPRESENTATION STRATEGY

      WE ASK FOR YOUR SUPPORT

      A strategy is only as good as those who implement the strategy.  While we may develop the strategy further, we ask for your support in publicizing the existence of this strategy.  We also ask for support from other attorneys to provide their clients a strategy such as this one.

      Should you find in our community of attorneys an attorney who is taking clients at a low cost and sending the ‘innocence’ letters as we propose in this strategy, but clients taken are not innocent, this could ruin the credibility of the strategy.  Similarly, we ask attorneys to adhere to the ‘no settlement’ stance, and not to give in to ‘nuisance’ settlement payments.  Although a nuisance settlement can be a few hundred or a few thousand dollars here or there, this is exactly what will perpetuate the copyright troll scheme, and will keep the copyright trolls in business and thriving.

      CREDIT GIVEN WHERE CREDIT DUE.

      We credit Matthew Sag and his”Defense Against the Dark Arts of Copyright Trolling” paper for exposing to the world the problems with the copyright troll lawsuits, and we look forward to seeing an end to copyright trolling once and for all.

      -Rob Cashman, Author of the TorrentLawyer blog, and owner of the Cashman Law Firm, PLLC

      REVISITED: Beware of the defense attorney “settlement factory.”

      This post was originally written as a “rant” against volume-based “settlement factory” attorneys.  At the time, the kind of damage they caused to accused defendants in bittorrent cases was unknown, as was their existence.  Even today, settlement factory defense attorneys continue to feed inquiring ‘John Doe’ subpoena recipients false information.  

      As a result, settlement prices paid to copyright trolls often end up being artificially inflated.  As of 4/17/2017, I have revisited the topic, and it is still as valid today as it was one year ago.

      After writing this article, Ernesto from Torrentfreak wrote an article entitled, “BEWARE: PIRACY DEFENSE LAWYERS CAN BE “TROLLS” TOO.“.  -Rob Cashman

      Beware of Attorney Settlement Factories

      I started writing this article because there is too much conflicting information floating around the web about whether to settle a bittorrent-based copyright infringement lawsuit.  The attorneys who are causing this confusion are trying to profit from the current broken state of the copyright laws.  These attorneys use fear tactics and manipulation to scare a John Doe Defendant into settling with their law firm.  

      Credible Websites Teach That Settlement is NOT a Requirement

      There are credible websites that blog almost daily on copyright troll issues.  

      see “Fight Copyright Trolls,”

      see “Die Troll Die.”

      Copyright Trolls Do Not Take Cases To Trial

      Because copyright infringement lawsuits are often based on scare tactics, and because copyright troll attorneys name only a small sliver of defendants sued, ignoring a copyright troll and his threats can be a good strategy.

      IGNORING A COPYRIGHT INFRINGEMENT CLAIM AGAINST YOU CAN OFTEN BE A VIABLE OPTION TO RESOLVE THE PROBLEM (WITHOUT SPENDING $$$$ ON A LAWYER). 

      Thus, beware of the so-called “defense” attorneys who tell you that you will lose your home and your life savings if you do not settle.

      What are “SETTLEMENT FACTORY” defense attorneys?

      NOTE: In this section, I give you the red flags to look for to spot these attorneys, and I hope this helps clarify some of the conflicting information you get from speaking to different attorneys.

      “SETTLEMENT FACTORIES” are what I call law firms who focus on providing apparent “low cost settlements” to clients (as you will see, the settlements end up not being low cost).

      These settlement factory law firms hire multiple attorneys to solicit and lure accused ‘John Doe’ defendants into hiring them “for a cheap and anonymous settlement.”

      From a business perspective, more attorneys for the business owner means the ability to make more phone calls to solicit more accused defendants [to process more settlements], and the ability to “capture” more clients for their law firm means more profits.

      SETTLEMENT FACTORY law firms PRE-ARRANGE settlement amounts.

      Rather than actually negotiate a good settlement for their client, settlement factories run what I refer to as a “volume business.” They PRE-ARRANGE an often inflated settlement price with the copyright holder, so the copyright troll will agree to the arrangement.

      In return, the copyright troll allows that so-called attorney to not have to negotiate the settlement for each client, since they have a prearranged agreed-upon “settlement amount.”

      Why settlement factory attorneys are PART OF THE PROBLEM of copyright trolling.

      This arrangement creates a “cottage industry,” where the defense attorney and the plaintiff attorney (who are supposed to be opponents) are allies for profit.  Settlement factory attorneys are part of the problem of copyright trolling; they are not part of the solution, and the only one that gets hurt is the accused defendant.  Why?  Because with settlement factories, the accused defendant almost NEVER gets the lowest possible settlement amount.

      SETTLEMENT FACTORY law firms DO NOT NEGOTIATE SETTLEMENT AGREEMENTS either.

      What compounds the problem is that negotiating the settlement is only HALF of the solution. The SETTLEMENT AGREEMENT itself must also be negotiated.  However, settlement factory attorneys do not negotiate settlements either (even though they tell you they do).

      Why settlement agreements need to be negotiated.

      Settlement agreements need to be negotiated because “boilerplate” settlement agreements contain ADMISSIONS OF GUILT and UNFRIENDLY LANGUAGE.

      These boilerplate settlement agreements do not protect the client because they often:

      1. do not properly identify the accused defendant by name,
      2. they do not contain proper confidentiality clauses (to stop the plaintiff attorney from suing again or asking for more money later on), and
      3. they do not release the accused defendant from liability.
      Settlement factory defense attorneys.

      As a result of this article, settlement factory attorneys will take steps to hide their scheme.

      For me, where writing this article will become infuriating is that suddenly these attorneys and their “beefed up” staff of hired attorneys will now start advertising 1) that they spend the time to actively negotiate the best settlement for their client, and 2) that they take the careful time to negotiate the terms of the settlement agreement so that the accused John Doe Defendant will be released from liability and the negotiated terms will properly protect the client’s rights.  Sure they will.

      ‘RED FLAGS’ TO SPOT A SETTLEMENT FACTORY

      I know settlement factory attorneys follow this blog, and thus all I could say is “caveat emptor.”

      At the time of writing this blog, here are the items to look for:

      1) How long that attorney has been in practice [REMEMBER: “Copyright Troll” mass bittorrent lawsuits targeting multiple “John Doe” defendants have only been in existence only since 2010, so any attorney who claims he has been fighting copyright trolls for 20 years is obviously lying.],

      2) Check the attorney’s blog to see the HISTORY of his articles — was he one of the first attorneys who fought these cases, or is he a new “me too” copycat attorney who is standing on the shoulders of giants? (after reading this, no doubt these attorney will now add “older” articles to make their website look older),

      3) Check the blog article itself for “SEO OPTIMIZED” content, or “KEYWORDS” placed into the article.  Ask yourself, “was the purpose of this article to provide me valuable information? or was the purpose of the article to bulk it up with keywords so that search engine spiders will reward the author with first page rankings on the search engines?

      2017 UPDATE: When I mentioned SEO OPTIMIZED content, I am referring to the fact that settlement factory blog articles lack content.  In our blog, we have over 200+ information-packed articles that we wrote TO EDUCATE.  Obviously many clients came to our firm as a result of our articles, and this is fine.  However, settlement factories have ONE MOTIVE ONLY: TO PROFIT.  Look for sites that advertise to you rather than inform you and educate you.

      4) Last, but not least, check the EARLY ARTICLES of the blog to see whether the attorney actually tried to fight these cases and hash out the legal arguments, or whether they were merely reporting on the lawsuits already in existence to attract new business.  I call these attorneys “me too” attorneys, and you can usually spot them because all they do is report the cases.

      AUTHENTICITY AND ORIGINALITY

      In 2010, I and a small handful of attorneys were contacted by the Electronic Frontier Foundation (better known as EFF) to help understand and resolve the developing copyright troll problem.  This was back when ISPs began sending letters out to their subscribers informing them that their ISP would be handing out their contact information and their identity to the plaintiff attorney / copyright holders unless they filed objections (or, “motions to quash”) with the courts. Thus, I credit the EFF for even noticing the copyright troll problem and contacting us to figure out what to do about it.

      COPYCATS / FOR PROFIT ATTORNEYS

      Unfortunately (or, fortunately, however you see it), that initial list of 20 attorneys has grown to over 100+ names, and some attorneys have negotiated with EFF to list them as representing clients in multiple states, hence increasing their visibility in an ever-growing list of lawyers. Watch for these attorneys — they are usually the “settlement factories” I referenced above, and again, caveat emptor.

      REPUTABLE ATTORNEYS DO EXIST

      Let’s pretend, for a moment, that you did not like me or my use of pretrial strategies (often making use of federal procedure) to defend a client. Or, let’s pretend for a moment that I could not take you as a client (e.g., because my case load was full, or because I did not have time to speak to you about your matter).

      Because there were only a handful of us attorneys on the original EFF list who knew anything about these copyright infringement lawsuits, over the years, we have become friends and have helped each other out on many of the lawsuits in which we represented both John Doe Defendants and “named and served” defendants. Some of these attorneys are still around today, and some have moved on to other areas of law.  Some of them have stopped taking clients because fighting mass bittorrent cases has become more burdensome than the effort was worth (especially when some copyright holders do not play fairly in discovery [think, Malibu Media, LLC]).

      PIPEDREAMS AND REFERRALS

      Finding “that special client who will pay my fees to fight this case to trial” for many attorneys has become an unrealized pipe dream, and is something us attorneys often discuss.  If you truly want to fight your case, I have nothing wrong with either me, or anyone else I trust representing you in your lawsuit (I will happily tout another attorney’s merits and advanced skillsets when speaking to clients). AND, I will happily refer you to someone if I find that one of my peers would better assist you.

      NO REFERRAL FEES

      I *DO NOT* believe in referral fees, nor do I “share the workload” with other attorneys (this is code word for “I referred you this client, so pay me a piece of the legal fees you receive and call it paying me for my “proportional efforts.”).  This is something that is often done in my field which, in my opinion, needs to stop.

      Over the years, I have upset many non-copyright attorneys who know nothing about these cases.  In the typical fashion, they call me with a client they would like to refer to me (coincidentally, asking to share in the fees, but not in the work).  I have rejected each request.

      So in hindsight, while I thought I’d be reintroducing “copyright troll” subpoenas and basic copyright infringement concepts to clear up some conflicting information found on the web, instead I am providing a clear warning to those who are being actively solicited by law firms. A law firm simply should not be calling you or contacting you to solicit your business.

      BACK TO IGNORING A CLAIM OF COPYRIGHT INFRINGEMENT

      Copyright trolls sue many John Doe Defendants in one case, but only a small number of them are named and served.  When you are evaluating your options, STOP AND CONSIDER THE OPTION OF *NOT SETTLING*, BECAUSE *NOT SETTLING* A CLAIM OF COPYRIGHT INFRINGEMENT CAN OFTEN BE A GOOD IDEA.

      Similarly, in a lawsuit, DOING NOTHING MAY OFTEN BE YOUR BEST STRATEGIC MOVE, as counterintuitive as that might sound.  Again, this is because much of the ‘copyright trolling’ problem is based on a bluff — namely, that the copyright holders have evidence against you, and they will take you to trial if you do not pay them money to settle.

      A Settlement Factory attorney makes NO MONEY if you ignore.

      When you are bombarded with attorneys and law firms who actively market their fear-based services by using “Google AdWords” (ethically or unethically “buying” more well known attorney’s names as keywords so that THEY show up at the top of a search).  Then, those attorneys have their “assistant” attorneys calling you and pushing you to anonymously settle the claims against you, think twice. Is this person trying to get you to be yet one more client in their “volume” business??

      WHY WE DISCUSS THE “IGNORE” OPTION WITH EVERY POTENTIAL CLIENT

      In every one of my calls, I discuss what I call the “ignore” option which in many people’s scenario is a viable option. In many cases, I even push a client towards the “ignore” side of things.

      [NOTE: There are many political reasons I have for this, such as “not feeding the troll,” or “not funding their extortion-based scheme,” or simply because I have been trying to change the copyright laws to limit or hinder a copyright holder’s ability to accuse or sue an internet user for the violation of that copyright holder’s copyrights, but NONE OF THOSE REASONS ARE REASON WHY I SUGGEST SOMEONE I SPEAK TO IGNORES THE CLAIMS AGAINST THEM.]

      WHEN TO CONSIDER THE “IGNORE” OPTION.

      Sometimes an individual’s circumstances allow them to ignore the lawsuit filed against them (or the copyright violation claimed against them in the DMCA notice).  Such factors include:

      1) the individual’s financial situation,

      2) whether they live in an apartment or a home,

      3) the location of that apartment or home,

      3) the state in which the plaintiff attorney has his law firm,

      4) whether that copyright holder authorizes his attorneys [and pays their fee] to “name and serve” defendants and move forward with trial,

      5) for strategy purposes, e.g., the psychological impact of having one or more John Doe Defendants ignore the claims against them (while other defendants rush to settle in fear of being named and served), or

      6) simply because ignoring is the only option in that person’s situation.

      IN SUMMARY

      In summary, this has been a stream of thought article, but if you have made it to this point, you now understand the difference between a defense attorney who does settlements (among other forms of representation), and the settlement factory.

      If the attorney you are speaking to is running your case as a volume business, or he is pushing you towards a “quick anonymous settlement” without showing you the merits of either 1) IGNORING, or 2) DEFENDING the claims against you, beware.

      And if you need help and want my honest opinion about your case, or whether a particular attorney is engaging in a certain practice, just ask me.  I do not need to have all of you as clients, and I will answer you honestly.  And if you need, I will provide you a referral.


      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.

         

        Skip to content