FEAR should never be a consideration when considering a copyright attorney to defend you against a Strike 3 Holdings, LLC (or, Malibu Media, LLC or any other copyright troll) lawsuit.
I have written many articles describing the activities of copyright trolls AND so-called defense attorneys who claim that they represent defendants. I and others have called those attorneys that file hundreds of mass copyright infringement lawsuits “copyright trolls,” and I call attorneys who pretend to represent defendants (but who really run volume-based settlement businesses) “settlement factories.”
CREDIBILITY
For credibility, I and my staff at the Cashman Law Firm, PLLC manage our docket of clients very carefully. As you may have experienced yourself, in the eight years we have been representing copyright infringement John Does accused of copyright infringement, there have been many times where we simply do not take new clients. Each client takes a limited number of resources, and we do not run a volume-based business. [See here for more details.]
Thus, I have nothing wrong with answering your questions and directing you to an attorney who is competent to take your case. We have never taken a referral fee from an attorney, nor do we ever plan to. I hope you can appreciate this, even if after speaking to me I was not going to be your attorney.
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EFF.org’s Subpoena Defense List:
Only Kudos for EFF:
I have only good things to say about EFF, and I support them 100% on so many of their efforts. I am about to criticize their Subpoena Defense List, but this does not reflect the respect, admiration and support I have always had for them.
The Good:
One resource that copyright infringement defendants often find is the EFF Subpoena Defense list. On this EFF.org list, there are possibly now hundreds of attorneys who can represent you in your John Doe-based copyright infringement lawsuit — many of them good attorneys who I have known for many years.
NOTE #1: It is interesting exercise to see who-is-who (which attorneys have been around for a while, and which are the newer attorneys who act as “copycats,” often merely settling cases), and you can do so by clicking on Archive.org’s “Way Back Machine” here:
NOTE #2: Just because an attorney is new does not mean that he or she is unable to take your case. I am merely demonstrating how much this list has grown since 2010.
The Bad:
EFF does not appear to filter this list, or at least they do not filter out attorneys who harm potential clients with misinformation.
If an attorney states that they will represent clients in a certain state, they will list them without vetting or verification.
Case in point — some attorneys list themselves as taking clients in multiple states. Any attorney can represent a defendant in any federal court in any state, as long as that federal court allows an out-of-state attorney to “pro hac” into that federal court (most do). It is deceptive for an attorney to indicate they are licensed in a particular state in which they are not licensed to practice law.
The EFF Subpoena Defense list size has also grown exponentially. In 2010, this list contained a list attorneys who agreed to proactively defend clients in these cases (of those listed, 20 of us were active in this space); back then, the purpose of the EFF list was to hash out the law of copyright infringement as it applied to bittorrent-based copyright infringement lawsuits.
Now, the list contains HUNDREDS of attorneys who are trying to capitalize on the hundreds of defendants who are sued in the federal courts each month, without regard as to who is a credible attorney and who is a settlement factory.
The Ugly:
The EFF Subpoena Defense List has become populated with attorneys 1) who are not familiar with the case law we have developed over the years, 2) who do not care whether a defendant SHOULD pay a settlement or not, and 3) who often MISREPRESENT the law to potential clients who call them desperate for help.
These settlement factory attorneys threaten accused defendants… even with JAIL time for a CIVIL lawsuit, when any attorney should know that copyright infringement lawsuits are CIVIL lawsuits — at their worst, they ask a defendant to pay money damages or they stop a defendant from committing a certain act — they do not accuse a defendant of committing a crime.
Unfortunately, over the years, I have found that there are a number of “settlement factories” on this list, one more was exposed to me this morning.
I do not plan on making this article yet one more article identifying copyright settlement factories and their tactics, nor do I expose the names of other attorneys who have some brilliant and smart sales tactics to lure you in. As you see — I do not post on this website often, nor do I maintain a hype-based, fear-based website on who is suing who in what state.
Have you read enough? Book Now to get help. > > >
Here is my point.
When you speak to a defense attorney about your copyright infringement lawsuit, 1) that attorney should inform you of the nature of the lawsuit, 2) they should inform you of the claims against you, and 3) they should provide you all of your options on how to defend yourself (even those options which do not profit that attorney).
If that attorney cannot assist you, he or she should not take you as a client (only to surprise you later telling you that you must settle, or else). Rather, he should refer you to an attorney who can assist you.
And never — NEVER — should that attorney misstate the law or threaten a client with fear-based tactics or veiled threats that a certain plaintiff attorney will do something that they would not ordinarily do.
I’ll stop here. In short, look up the attorney you are considering to retain as your attorney to represent you in your lawsuit.
Helpful Hints:
Do not be fooled with crafty sales tactics or web site blog articles written as soon as a lawsuit is filed.
Ask yourself when viewing an attorney’s website — is he trying to ensnare me to become his client? Did he have to pay per click for me to click on his website (we too have done AdWords campaigns over the years, but only rarely).
Usually, a settlement factory will always have an extensive Google AdWords campaign going, or they will position their website [either by explicit payment, by posting keyword-based useless content, or by posting alternative media, e.g., animations and videos to separate their multimedia ads from the other attorneys who are writing helpful content on the website] so that they show up at the top of every search engine ranking for every keyword).
A note on law firms without blogs:
Lastly, just because an attorney does not have an extensive blog [like we do] does not mean that they are incompetent about your case. There are a number of credible attorneys who I trust, and they do not have blogs.
If I cannot assist you or represent you myself, I will happily refer you to an attorney, even if he or she only has a one-page website. This attorney might be better than all of those copyright settlement factories who post with tags and keywords every time a lawsuit is filed in a particular state.
Have you read enough? Book Now to get help. > > >
Your consultation with an attorney should be a pleasant experience.
I guess it is important to mention that the conversation with your defense attorney should be a pleasant conversation.
You should feel better about yourself and your case when you hang up the phone, and when you do, you should feel as if you were educated about your case and your options.
If an attorney has scared you, or has threatened you by what the plaintiff attorney will do or could do, or if the attorney has told you that your only option is to settle the claims against you (especially if you did not do the download), he is likely not the attorney for you.
Even the worst case scenario in these cases is a civil judgement against you, which are money damages. Nobody will ever take away your freedom, and nobody will ever put you in jail for downloading materials which are the subject of these copyright infringement “John Doe” subpoena-based lawsuits.
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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.