Honestly, that question requires a case-by-case answer. Usually, yes, but often no.
Most calls that come in to our Cashman Law Firm, PLLC, I absolutely DO want to help. And, I will spend quite a bit of time with accused defendants on the phone, even when I know they will not become my client.
I also write articles and sometimes make short videos to explain a topic, a concept, or even a particular lawsuit. This does not mean I have any intention of taking clients for that lawsuit (I might, I might not).
A Great Example: Culpepper’s Lumen 512(h) Subpoena Lawsuits
I recently wrote an article on the Lumen Legal 512(h) Subpoenas that Kerry Culpepper was sending to accused defendants in Colorado. I knew exactly what he was doing here, because I remember when he did the same thing in Hawaii. So I wrote a few things up, and I posted it to the blog.
My intention was not to get clients from the post. It was ‘old’ news by the time I posted it, and Andy Maxwell from TorrentFreak already wrote about why the DMCA 512(h) strategy was a loser. However, I had something more detailed to share, since I have paid attention to what Culpepper has done in the past (with some interest, and sometimes with some popcorn, especially since he likes to break the mold).
But as soon as wrote the article, I started to see other attorneys — the settlement factories — write their “SETTLE THIS CASE NOW” articles. This was annoying to me because the premise was that if you did not do the downloading, you should not be paying anything to settle. I was also suggesting to those that spoke to me (on a case-by-case basis) that perhaps it was better not to settle the claims against them. But then here were all the settlement factories advertising scaring everyone with manipulative tactics (and flat out false information) into how important it was to “settle now.” Yeah, right. These attorneys just want to collect their “flat fee” $2,500 – $3,000 for the hour or so of work they will be doing for as many of those defendants as possible.
So, yes. I am taking clients now for that case… Just to take the clients away from those who are trying to manipulate them into settling the lawsuits when they shouldn’t be settling.
Is that mean of me? Yes.
Am I protecting my clients against the predatory “Torrent Defense” attorneys who are trying to get everyone to settle? Yes.
In sum, just because I write an article does not mean I am trying to get you to be my client.
If I am not taking clients for a particular case, I will let you know as soon as we speak (I’ll even often do it by e-mail before we speak). I will still happily take your call, if only to give you good and accurate information about whatever you are dealing with, but please respect my time because I am running a law firm as well.
It could be that the only reason we are speaking is because I am aware that nobody else is giving accurate information that I am 100% aware they know about too, but are just not disclosing to you.
But I have nothing wrong with being the messenger, even if I lose you as a client. I trust that our law firm will continue to thrive, and we will continue to have clients who want and need the services we offer.
If I cannot give you the outcome you are looking for, then you should not be my client. There is no reason to hide things until you become my client. I’d rather tell you the bad news up front (if there is bad news) rather than wait for you to become a client and then ‘surprise’ you with the bad news that I knew all along. I know of a few attorneys who do this quite regularly — yes, they are settlement factories, and yes, you probably clicked on a sponsored link that they paid a lot of money for you to click on.
What I want for you (whether or not you become a client)…
I want you to have accurate information. I also want you to… Smile, breathe, and know that these lawsuits begin and they end. My goal in speaking with you is that whether I represent you or just equip you with knowledge, I’d like you to emerge from your lawsuit unscathed, uninjured, and able to move on and rebuild whatever you lost in defending or resolving the claims against you.
— FOR MORE INFORMATION: If you have been implicated as a John Doe defendant in a lawsuit, even though your case functions differently from the typical copyright infringement case, you should still read the article below, immediately:
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. The attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me. However, 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 in any e-mail.
If you have any questions or would like to speak to Rob Cashman at the Cashman Law Firm, PLLC, you can fill out a web form, or you can set up a phone consultation using this link.
Kerry Culpepper of Culpepper IP is once again making seemingly unnoticed moves in the world of copyright enforcement. This time, he has filed a new lawsuit in the US District Court for the District of Colorado, leveraging 512(h) subpoenas to unmask the identities of defendants accused of illegally downloading copyrighted content, just as he did in 2019 in Hawaii.
The new case, Capstone Studios Corp. v. CenturyLink Communications LLC doing business as Lumen Technologies Group (Case No. 1:24-mc-00071, or more commonly referred to as 24-mc-71), highlights this attorney’s continued commitment to pursuing alleged infringers.
The §512(h) subpoena that Kerry Culpepper is using in his lawsuits is based on a provision in the Digital Millennium Copyright Act (DMCA). It allows copyright holders to obtain information about the identity of individuals who may have infringed their copyrights online.
Here’s how it works:
When a copyright holder believes that their work is being infringed upon, they can issue a notice to the online service provider (OSP; throughout our websites, I usually refer to them as internet service providers, or “ISPs”) under DMCA’s “safe harbor” provisions. If the ISP complies by taking down the allegedly infringing content, the copyright holder can then use the 512(h) process to seek the identity of the person responsible for the infringement.
To initiate a §512(h) subpoena, the copyright holder must go to a federal court and request that the court issue a subpoena to the ISP. This document requires the ISP to provide information about the user, such as their name, address, and in these cases, usernames, logins, or other details that he corroborate with the infringing activities. The court generally issues this subpoena if the copyright holder demonstrates that they have a “good faith belief” (a legal term) that the information is needed to identify and potentially pursue legal action against the infringer.
Overall, the §512(h) subpoena is a mechanism designed to balance the enforcement of copyright laws with the privacy rights of individuals, ensuring that copyright holders have a path to address potential infringements while also providing procedural safeguards for those accused. In my opinion as an attorney, 512(h) is flawed, however, because the protection is one-sided — only favoring the copyright holders and their attorneys.
In the 24-mc-71 case, Culpepper IP is again utilizing 512(h) to obtain the identities of individuals suspected of downloading copyrighted films without authorization. This time, he is doing the same thing in the US District Court for the District of Colorado. This method, which he previously employed in similar cases, has proven effective. With this strategy, he opens up a case, gets the court to authorize a 512(h) subpoena, and then as quickly as the case opened, it closes — seemingly without a trace. But there is a ‘trail of hurt’ that he causes through these filings, because shortly after the case closed, Culpepper starts sending 512(h) subpoenas to the ISPs (here, Lumen) forcing them to turn over the names, address, and other relevant information of their customers who are accused of downloading, streaming, or viewing his clients’ copyrighted titles.
One of the primary focuses of this new case (24-mc-71) is the enforcement of copyright protection for his client, Capstone Studios Corp. The studio is seeking to identify individuals who are accused of illegally sharing and downloading their films. Among the titles referenced in his paperwork are “Breathe” and “Boy Kills World, (appearing as boy.kills.world in the paperwork)” which appear to be central to this filing. The plaintiff attorney’s approach involves sending Lumen subpoenas to CenturyLink, which is doing business as Lumen Technologies Group, to reveal the identities of their customers allegedly involved in copyright infringement.
The Lumen subpoena and the letter from Lumen (the “Lumen Letter”) is the first thing CenturyLink subscribers see when they are sent a copy of the 512(h) subpoena in the Colorado 1:24-mc-00071 case. By issuing these subpoenas, Culpepper IP aims to compel the ISP to disclose the personal information of its customers who are suspected of downloading the copyrighted films belonging to his clients. The Lumen letter, which is the formal communication accompanying the subpoena, outlines the legal demand for account holder information and it is the legal basis for the demand. This method of using the 512(h) subpoena appears to be a new ‘stealth’ process to enforce copyright laws and hold alleged infringers accountable.
Impact on CenturyLink ISP Subscribers and Legal Proceedings
For subscribers of CenturyLink, receiving a Lumen letter now can feel like a serious threat (especially knowing what this attorney has done in the past). The letter from Lumen shares that an IP address assigned to them has been linked to alleged illegal activity, and their personal details may soon be revealed to the requesting party. This can lead to legal consequences, including him threatening you that he might sue you for copyright infringement, along with any financial liabilities you would have to undergo in hiring an attorney, defending the claims against you, and paying any copyright infringement statutory damages (~$150,000 per instance of infringement) if the court eventually finds you guilty of infringement.
However, as I have explained in the past, I do not believe that Culpepper is looking to go after each of the 100+ defendants in the Colorado Federal Court. Instead, I believe the subpoenas may be used to identify the name and address (the physical address), and the contact number (the telephone number) of each internet user identified by the DMCA 512(h) subpoena. Then, he will likely seek a settlement payment for each of the films you and the other accused downloaders have allegedly downloaded over the past three years (the statute of limitations for copyright infringement).
But I do not believe Culpepper’s motivations stop there. He is not a “copyright troll” in the classic way of thinking of one of these; he’s more dangerous — because I believe he is using you (a “smaller fish”) to go after “a bigger fish” (the ISPs). I still think his plan is to go after the ISPs themselves, hoping to secure evidence that the ISPs are not properly ‘policing’ their own networks. While he might still ask for just a few thousand dollars from each of the accused John Doe Defendants in the 1:24-mc-00071 Colorado case referenced in the Lumen subpoena, I believe his ultimate goal is to try to use the existence of the settlements themselves to solicit or achieve a judgement of millions of dollars from the ISP itself.
For the Boy Kills World lawsuit, or the Breathe case (however you want to call it, because last year, the attorney was going after those who downloaded the survival thriller film “Fall“) — proving the copyright infringement on the ISP networks for each of these films are a part of this broader legal action. It exemplifies Culpepper’s strategy in appearing to protect the of content creators, but only [in my opinion] as a distraction while he goes after his real target — whether that is unfettered access to the ISP’s customer’s information, a significantly larger settlement from the ISP or some other entity with ‘larger pockets’, or some other target I have not yet considered.
For now — at least for me — the 24-mc-71 case underscores the need to protect against the re-emergence (and as an attorney, dare I say ‘misuse’) of robust copyright enforcement mechanisms (such as the DMCA 512(h) subpoena). The case also highlights the ongoing efforts by this attorney to secure large settlements, access, and power — all under the seemingly noble goal of attempting to combat piracy for his clients, and stopping unauthorized distribution of his clients’ copyrighted materials.
TorrentFreak also wrote about Culpepper & Lumen Subpoenas.
I also wanted to point out that I am not the only one who has noticed this trend of using DMCA letters to unmask the names and addresses of accused defendants. Ernesto Van der Sar and Andy Maxwell from TorrentFreak also wrote about this in these articles:
…and probably many more articles that I am not referencing here.
So if these articles happened in 2022-2023, then why am I now writing about this in 2024?
I wish the answer were not this simplistic, but the answer is that everything that I wrote about happened in 2022-2023. However, the Lumen Subpoena Letters to account holders were not sent out — at least for the most recent two movies — until now.
And, as the owner of the Cashman Law Firm, PLLC (and the one who usually ends up speaking to people calling into our law firm and asking questions about these cases), people are calling me and asking my opinion about what to do here.
Why? Because I have been tracking the activities of Kerry Culpepper and his law firm for many years.
Kerry Culpepper’s latest lawsuit, Capstone Studios Corp. v. CenturyLink Communications LLC (24-mc-71), marks a continued effort to protect intellectual property rights through the use of 512(h) subpoenas. By targeting alleged infringers through Lumen subpoenas, Culpepper IP is working to uncover the identities of those involved in the unauthorized downloading of copyrighted films such as “Breathe” and “Boy Kills World.” This case not only reflects the new use of 512(h) subpoenas to unmask the identities of those accused of downloading his clients’ copyrighted titles without a license. This new strategy of using 512(h) subpoenas as a method of achieving copyright enforcement was first seen in 2019 in the Hawaii federal courts, where I wrote about it then. Seeing that it has now spread to Colorado, and that this Colorado lawsuit has cast a wide net over internet users across the US (not only in Colorado) made me take a second look at this new copyright enforcement tool, because I expect to see it copied and used by other copyright holders in many other courts in the coming months and years.
If you are a CenturyLink subscriber who has received a Lumen Letter (or a subpoena from Lumen) referencing the 24-mc-71 case, and you need some guidance on what Kerry Culpepper has done in the past with our previous clients over the years, please let me know. I will do what I can to share what I know, and if I can help you avoid Kerry Culpepper’s lawsuits and his copyright enforcement actions, I would be happy to do what I can.
[Honestly, I don’t care to go into details about this section, and you as the reader will NOT benefit from reading it, so SKIP to the next section].
You might then ask, “So why include it in this article”? Because this was the only way for you to type “Lumen subpoena” and have what I believe should be a useful article for you to show up in the list of results.
That’s tricky, I know, but fair is fair. If you are still reading this article, then you are interested in this content, and I did a good thing by putting this in front of you.
What would Lumen tell you about these subpoenas?
They would tell you that since we are in the intricate realm of data privacy and telecommunications, numerous procedures and protocols are in place to handle sensitive information. For instance, if a plaintiff or anyone (including law enforcement agencies) requires access to data maintained in the normal course of business by Lumen, they must call the Lumen trust and issue a subpoena or court order. This legal demand will state that Lumen must perform an extensive search to retrieve the necessary call records or subscriber information maintained by Lumen. The information may include your name, the associated phone number (including the area code and prefix), and the content of the data — each of these will be released with a subpoena.
For those seeking to trace a call or retrieve voicemail messages, it’s essential to understand that Lumen’s policies govern the release of such data. Lumen’s trust and safety team ensures that any request for data, including legal demands, is handled according to established guidelines.
If you are a subscriber trying to obtain a record or if you have questions regarding applicable fees or the process, you may need to contact Lumen directly. The company provides a customer service number, 877-451-1980, where you can follow the menu options for assistance. Lumen cannot retrieve voice mail messages. Furthermore, Lumen charges applicable feels for retrieving and processing such information, and results will only be released under the legal obligation of a subpoena. Additionally, certain items, like call detail records, may not appear on an itemized bill, and third-party billed calls might also be available under specific conditions. For queries related to this process, you can contact Lumen’s customer service at 877-451-1980 and follow the menu options provided.
For general information, including data privacy and safety FAQs, Lumen’s trust and safety team ensures compliance with regulations and maintains information in the normal course of business.
In cases involving a film or entertainment-related litigation, such as a case involving a film like “Boy Kills World,” the subpoena process would still apply if any telecommunications data needs to be reviewed. For legal matters, the Lumen entity registered to handle such issues might also provide responses or information as required by the legal obligation. Remember, for more precise queries, including those about specific data retrieval or content, contacting the relevant department or consulting legal advice is crucial, and applicable fees may apply.
— FOR MORE INFORMATION: If you have been implicated as a John Doe defendant in a lawsuit, even though your case functions differently from the typical copyright infringement case, you should still read the article below, immediately:
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. The attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me. However, 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 in any e-mail.
How John Doe Defendants in Copyright Infringement Lawsuits Can Protect Their Identity and Avoid Costly Settlements with Exploitative Law Firms.
Table of Contents
Part 1: Understanding Subpoenas and the Motion to Quash
What is a subpoena to produce documents, and how is it relevant in my copyright infringement lawsuit?
No doubt, you are reading this article because you received a letter from your internet service provider (ISP) informing you that you are accused of being a John Doe Defendant in a copyright infringement lawsuit. In 2024, this is primarily coming from thousands of Strike 3 Holdings LLC lawsuits that are filed across the US. In these lawsuits, each defendant is accused of downloading multiple copyrighted adult film videos using online filesharing software.
With the ISP letter, there is usually a subpoena to produce documents. A subpoena is a legal document ordering the recipient to share tangible things, such as a list of IP addresses assigned to a particular internet user over time, MAC addresses used, or usernames and passwords. The subpoena may also compel the ISP to produce documents. This occurs not in the context of a criminal case, but within a civil case filed in a federal court in the U.S.
It is important to note that this subpoena is not sent directly to the accused internet user. Rather, it is sent to the ISP, along with a judge’s order to compel them to inspect and copy their records to identify which subscriber was assigned a particular IP address at the times the alleged downloads occurred.
The ISP would be sharing this information ONLY to the party serving the subpoena (not to the court).
What are the ways to quash a subpoena, and WHO should be filing the motion to quash? The account holder or the ISP?
The subpoenaed party (here, the ISP) may file a motion with the court to oppose the subpoena, especially if:
The cost of producing the requested information is too burdensome,
The compliance time specified is too short (30 days after service upon the ISP is usually acceptable, but shorter timeframes are less reasonable), or
The information sought comprises an abuse of discretion.
The ISP can also file a motion to quash or modify a subpoena if:
It is overbroad,
It requires disclosure of privileged information, or
It would impose an undue burden on their business operations to ensure compliance.
They may also appear in court to quash or modify the subpoena if permitted for good cause shown.
The mistake is that the accused downloader thinks the subpoena is meant for him.
The mistake, I believe, is that when the internet user sees the subpoena, they think it is THEY who are subject to the subpoena, when, in fact, it is directed to the ISP itself, not the accused John Doe Defendant. They may fear that failing to comply with the subpoena could lead to contempt of court. This is incorrect—the decision to file an objection with the court is entirely within the discretion of the ISP, not the accused internet user.
The rule is that a party may file a motion to quash the subpoena, and a court may order that the subpoena be modified or quashed if an objection is made citing that the subpoena would be overly burdensome or impossible to comply with or if there was a defect in the subpoena that an order of the court can remedy. However, the accused internet user is not a party in the lawsuit. While they might become a defendant if named and served, case law suggests that they do not have standing to challenge the subpoena (but the ISP could).
If I were to ‘lay blame’ somewhere for the confusion, I would blame the ISP.
Yes, I would blame the ISP, and here is why. The letter the internet service provider sends to the customer informs them that:
“the attorney designated in the subpoena is forcing us to share your contact information [because of the copyright infringement lawsuit they filed with the federal court].”
We are required to obey a properly served subpoena, and this one appears legitimate to us.
You are entitled to inspect this document, as it contains YOUR INFORMATION. If you wish to take steps to prevent us from complying with it, you must file a motion to quash.
However, your motion with the court must be in writing, and upon notice to the subpoenaed party (meaning, you must inform us that you have filed such a motion), we will hold back sharing your information with them… unless the court denies your motion.
As you can see, there are multiple ways to quash a subpoena, depending on whether the motion is made by the ISP who will [on their own] move to quash the subpoena or whether it is made by the accused John Doe Defendant who feels that the subpoena would force him to defend a lawsuit in a state in which he does not live.
What is a motion to quash in a copyright infringement lawsuit?
In copyright infringement lawsuits, motions to quash are requests to nullify a court decision allowing the plaintiff’s attorney to send subpoenas to internet service providers, compelling them to provide the identity of an accused defendant.
What is a motion to quash a subpoena?
Understanding a motion to quash involves its implications in copyright cases. A motion to quash is a request for the court to determine whether it has personal jurisdiction over the accused defendant. If the recipient of the ISP subpoena letter lives outside the state where the lawsuit was filed, the court will quash the subpoena and render it null and void.
Understanding what is a motion to quash is crucial for defendants facing subpoenas.
A motion to quash is a legal request to nullify a court’s decision regarding subpoenas. This request seeks to invalidate a prior court order that permitted the plaintiff’s attorney to compel the ISP to disclose the identity of one or more accused defendants by a specific date and time.
A motion to quash (also known as a “move to quash,” “motion for quash,” or simply “quash motion”) is the first legal document an accused defendant learns they must file upon receiving a subpoena letter from their internet service provider, which informs them that:
They are implicated as one of a small set of “John Doe” Defendants in a copyright infringement lawsuit.
The lawsuit was filed by a copyright holder who claims to own the rights to a movie they clicked on or downloaded.
They are being sued for $150,000 for allegedly downloading that movie.
They may or may not have actually downloaded that movie.
Their ISP is compelled by a subpoena to turn over their true identity, including their address, phone number, and other relevant information.
After inquiring further, they discover:
There is a way to prevent the internet service provider from disclosing their contact information. The simplest self-help option is to file an objection with the court, claiming that, based on the relevant U.S. law, the subpoena has a defect or that the court lacks personal jurisdiction because the defendant resides in another state. This motion to quash must be filed within 30 days before the deadline to oppose expires, often referred to as a “move to quash.” Because of this tight timeline, they realize they must learn how to file a motion to quash.
If they file the motion, the copyright holder may cite civil procedure rules and legal requirements, arguing that only a named and served defendant may file such a motion. However, since compliance with that judicial requirement is questionable, they will likely request the court to strike (dispose of) the motion.
If they do not file the motion by the deadline, the ISP must comply with the court’s order.
Motions to quash are not the answer, and here is why:
A motion to quash is the first piece of “legal jargon” an accused defendant (and the lawyer seeking their business) grabs onto.
The accused defendant thinks, “I am going to just press a button and quash the subpoena!” Then, when he realizes it is not that simple, the next logical thought is to visit the law library or search online for forms on how to file one or sample motions, etc.
What that accused defendant typically finds in the search results is almost never actual guidance on how to file one of these motions, but rather some enterprising attorney (often from Illinois) who decided to use this term to lure him in as a paying client for many months to come.
Faced with the prospect of hiring an attorney to file it for him, the accused defendant never asks, “Is the commencement of a court motion to quash the subpoena the right course of action in the first place?”
Should I file a motion to quash a subpoena? Often, the answer is no.
Understanding how to file a motion to quash is essential for defendants. If you live outside of the state in which you were sued, your motion to quash may succeed. However, by quashing the subpoena, the plaintiff’s attorney can file the same lawsuit in your home state.
Obviously, as an attorney, I need to navigate this issue carefully because this blog is not to be considered legal advice. However, NO, contrary to popular thought and mob rule, it is my belief, having defended “copyright troll” filesharing-based copyright infringement cases since 2010, that this is NOT an effective tool for stopping your ISP from handing out your information to the plaintiff attorney.
What exactly is a motion to quash?
In the context of BitTorrent lawsuits, a motion to quash serves as a legal mechanism for defendants to challenge subpoenas issued to their Internet Service Providers (ISPs). Essentially, this motion asks the court to determine whether it has personal jurisdiction over the defendant. In simpler terms, it questions if the lawsuit has been filed in the correct federal court or if the defendant is being wrongfully subjected to a court’s authority (and plaintiff attorneys have been forced to reimburse the ISPs for making this mistake).
[The actual context is that this would be an opposition to the subpoena which is forcing the internet service provider to hand over your information. The attack itself is on the validity of the subpoena, not the copyright troll or the plaintiff.]
The question a judge must determine when faced with such a defendant is: “Does this John Doe Defendant live in the jurisdiction or territory in which my federal court has power and control to enforce the laws over that defendant?”
When is a motion to quash successful?
A motion to quash is likely to succeed if the defendant can demonstrate that the lawsuit was filed in the wrong U.S. Federal District Court. For instance, if a defendant resides in New York, but the lawsuit has been filed in California, the California federal judge may dismiss the defendant from the case. Here are the key conditions:
Jurisdictional Error: The defendant must prove that the court lacks jurisdiction due to the filing being inappropriately placed.
Living Outside the Filed State: If the defendant lives in a different state than where the lawsuit was filed, the motion is more likely to be granted.
Knowing what happens after a motion to quash can help in planning legal strategies.
After a successful motion: The ISP is released from its obligation to disclose the defendant’s information to the plaintiff attorney. However, it’s important to note that the dismissal is “without prejudice,” meaning the copyright holder retains the right to refile the lawsuit in the defendant’s home state within three years from the date of the alleged infringement.
Conversely, a motion to quash is unlikely to succeed if:
Living in the Same State: If the defendant resides in the same state where the lawsuit was filed, the court is likely to rule that it has personal jurisdiction over the defendant, thus denying the motion.
ISP Compliance: If the motion is denied, the ISP is legally obligated to comply with the subpoena, handing over the defendant’s information to the plaintiff attorney.
In such cases, it can feel as though the ISP is promptly sending the defendant’s information, much like a FedEx package, to the plaintiff attorney, marking them as the individual who attempted to resist the subpoena.
In my experience, the judicial perspective can greatly influence the outcome of copyright infringement cases. Judges who view ISPs as under the Cable Act often lean in favor of the copyright holders, potentially disregarding privacy concerns. On the other hand, those judges who favor the rights of defendants tend to offer more robust protections.
The Importance of Understanding the Plaintiff’s Attorney
In copyright infringement cases, especially those involving file-sharing, a pivotal aspect of our legal strategy is to gain insight into the personality and tendencies of the plaintiff’s attorney. Understanding their motivations—such as whether they intend to name and serve defendants, or if they are more focused on settlements—can significantly influence how we approach each case.
The Judge’s Perspective Matters
Equally important is our understanding of how each federal judge views the validity of copyright infringement claims. Judges can vary widely in their interpretations, and their rulings often depend on specific case law references. For instance:
Pro-Copyright Holder Judges: Some judges rely on established case law that categorizes Internet Service Providers (ISPs) under the Cable Act or refer to cases like Arista Records LLC. These judges tend to favor copyright holders, often disregarding the privacy rights of defendants.
Pro-Defendant Judges: In contrast, judges who take a more lenient stance towards defendants are less likely to uphold subpoenas that infringe upon personal privacy rights.
This distinction is crucial as it shapes the legal strategies we deploy in defending our clients against copyright infringement allegations.
Despite the potential for a legal win, the reality was stark: even if successful, the damages awarded to my client would be limited to just $1,000. Given the time and resources required to pursue such a lawsuit, it became apparent that the costs far outweighed any potential benefits. The minimal recovery simply did not justify the legal battle.
Conclusion: A Complex Legal Landscape
The intersection of copyright law, ISP obligations, and privacy rights creates a complex legal landscape that demands careful navigation. Our firm is dedicated to understanding not only the motivations of opposing counsel but also the broader judicial context in which these cases unfold.
Whether you’re facing a copyright infringement claim or need guidance on the nuances of ISP liability, it’s crucial to seek informed legal counsel.
The hearing where the plaintiff (who filed the complaint) responds, calling your motion to quash defective, often includes arguments about whether you have standing to file the motion quash.
When an accused John Doe defendant files a motion to quash a subpoena in a copyright infringement case, it often leads to a contentious hearing. Here, the plaintiff—the party who initiated the complaint—responds to the motion, typically arguing that it is defective and questioning the defendant’s standing to file such a motion.
Standing to File a Motion to Quash
Historically, plaintiff attorneys, particularly those representing copyright holders (often referred to as “copyright trolls”), contend that defendants lack the standing necessary to challenge a subpoena. The rationale is straightforward: if the defendant has not yet been named and served in the lawsuit, they are not considered a party to the case.
In essence, the argument hinges on the nature of the “John Doe” designation. This placeholder signifies that the defendant is unnamed, and to ascertain their identity, the court requires access to the subscriber’s identifying information.
Unfortunately, in many cases, the chances of prevailing on a motion to quash are slim. Plaintiff attorneys may successfully argue that since the John Doe has not been named and served, there is no standing to file the motion. This reasoning often resonates with federal judges, leading to denials of the motion or alternative justifications for dismissal.
The Role of Plaintiff Attorneys in Copyright Cases
The personalities of plaintiff attorneys play a significant role in these proceedings. Those representing copyright holders often embody the archetype of the “copyright troll,” whose reputation stems from their relentless pursuit of settlements rather than genuine legal interest.
These attorneys are typically motivated by the financial incentives associated with these cases. Their goal is to extract substantial settlements—often running into the thousands—far exceeding the modest filing fees required to initiate a lawsuit. Since many work on a commission basis, their perceived time wasted opposing a quash motion can lead to a vindictive approach.
Consequences of Filing a Motion to Quash
When a defendant chooses to file a motion to quash, it can escalate tensions. The plaintiff attorney is compelled to mount a defense against the motion, which usually culminates in a hearing. While these hearings can be brief—often lasting only five minutes—they may consume a significant portion of the court’s schedule, leaving the plaintiff attorney feeling aggrieved.
As a result, a defendant’s decision to contest a subpoena may provoke hostility from the plaintiff attorney, potentially inflating settlement demands as retribution for perceived time wasted. This dynamic creates an environment where the stakes are raised, and defendants may find themselves facing increased pressure to settle.
Conclusion: The Complexity of Quashing Subpoenas
Navigating the process of filing a motion to quash in copyright infringement cases involves understanding not just the legal framework but also the personalities and strategies at play. Our Cashman Law Firm, PLLC is committed to providing guidance and representation that takes into account these complexities.
Ready to Take Action?
If you’re dealing with a motion to quash or have questions about your rights in a copyright infringement case, book a consultation with us at Cashman Law Firm, PLLC. Our experienced team is here to help you navigate these challenges effectively.
3dman_eu / Pixabay
Navigating the Process of Filing a Motion to Quash
Introduction: A Cautionary Note
Before we delve into the details, it’s crucial to clarify that I do not advocate for filing a motion to quash, especially concerning subpoenas issued by ISPs in lawsuits like those initiated by Strike 3 Holdings LLC. My intention is to provide you with information that many attorneys may overlook. It is my firm belief that filing such motions can often lead to more complications than benefits.
However, if you find yourself in a situation where you believe a motion to quash is necessary, here’s what you need to know:
Understanding the Motion to Quash
A motion to quash is a formal request to the court to invalidate a subpoena. This motion is typically initiated by an accused John Doe defendant who believes that the subpoena is improper or infringes on their rights. The process for filing a motion to quash must comply with local rules and electronic filing requirements.
[DO NOT use pre-written forms, especially by websites that focus on fighting these kinds of cases. Good story about online forms.]
The Procedure for Filing
Drafting the Motion: Your motion must be meticulously crafted to adhere to the legal standards set forth by the court. Avoid using generic pre-written forms, especially those found on websites aimed at combating these types of cases. Generic forms often lack the necessary specificity and legal arguments tailored to your unique circumstances.
Filing the Motion: Once your motion is ready, file it with the clerk of the court where the case is being heard. Upon filing, a hearing date will be assigned.
Preparing for the Hearing: You will need to gather evidence to support your position that the subpoena should be quashed. This often includes demonstrating that you do not reside in the jurisdiction where the lawsuit was filed, which can be substantiated with documents such as a driver’s license or a lease agreement.
The Hearing: At the scheduled hearing, both you and the plaintiff (in this case, Strike 3 Holdings LLC) will present your arguments. The plaintiff’s attorney is likely to assert that you lack standing to file the motion since you have not been named as a defendant in the case.
To challenge the subpoena effectively, you may want to argue the following:
Lack of Specificity: The plaintiff’s complaint must be pleaded with specificity. While they may claim that someone from a specific IP address downloaded copyrighted materials, it is a flawed assumption that the account holder is responsible. This lack of clear identification undermines the justification for disclosing your personal information.
Risks of Identification: Sharing your name and address with Strike 3 Holdings could expose you to further legal actions, as they may not have verified the downloader’s identity before including you in their lawsuit.
If the court agrees with your reasoning (which, fair warning, is not the most common outcome), it may find the subpoena overly broad or improper, possibly leading to a dismissal or amendment of the subpoena terms.
Post-Filing Considerations
The court’s decision will hinge on whether it has jurisdiction over you as a defendant. If you prevail in your motion to quash, the court may sever and dismiss you from the lawsuit and potentially quash subpoenas for other defendants involved.
A Note on Improper Service of Process
Often, individuals inquire about “improper service of process” as a valid basis for filing a motion to quash. However, in the context of a Strike 3 Holdings lawsuit, this argument typically lacks merit. Since the subpoena is directed at your ISP, you cannot contest a subpoena served to a third party. The court has routinely accepted the form and delivery of these subpoenas, reinforcing the notion that the playing field may not be even.
Conclusion: Proceed with Caution
In summary, while it is possible to file a motion to quash, it is fraught with potential pitfalls, particularly for defendants in copyright infringement cases. The path is complex and often leads to a scenario where the plaintiff’s attorney may leverage increased settlement demands against you.
If you are facing such a situation and seek personalized guidance, book a consultation with us at Cashman Law Firm, PLLC. Our experienced team is dedicated to helping you navigate these challenging waters effectively.
Part 3: Defense Strategies for John Doe Defendants
Avoiding an untimely response: § Instead of a motion to quash, what should the first step of my defense be? What about a motion to dismiss?
Great question. Rather than jumping to quash, the accused “John Doe” defendant needs to figure out whether he actually downloaded the movie that is the subject of the lawsuit.
During this time, your plaintiff attorney has a window in which he can investigate whether each accused downloader actually downloaded the file or not; he purportedly does this in order to determine which John Doe Defendants to name and serve, and which not to name and serve.
Really, this is the bulk of where the bittorrent-based copyright infringement lawsuits spend their time.
During this time, an attorney representing a John Doe Defendant has the opportunity to obtain whatever evidence the plaintiff attorney has on his client, and he has the opportunity to explain that it was not the accused John Doe who did the download.
Navigating Your Defense: First Steps for “John Doe” Defendants
Understanding Your Options
When confronted with a copyright infringement lawsuit, particularly those initiated by entities like Strike 3 Holdings LLC, the immediate impulse might be to file a motion to quash. However, this is often not the most effective first step. Instead, the accused “John Doe” defendant must take a moment to assess the situation carefully.
Assessing Your Actions
1. Determine Your Involvement: Before taking any legal action, it’s crucial to evaluate whether you actually downloaded the movie in question. Understanding your involvement is key to shaping your defense strategy.
2. Consult an Attorney: This step is imperative. Engaging a knowledgeable attorney can illuminate your options and help you navigate the complexities of copyright law. Most attorneys familiar with these cases will advise against filing a motion to quash due to the typically low success rate. Instead, they will recommend preparing a solid defense against the claims made against you.
The Importance of the “John Doe” Phase
During the “John Doe” phase of the lawsuit, your anonymity is preserved, which is advantageous. This period is crucial as it provides an opportunity to assess your situation without immediate legal repercussions.
Gather Information: Your attorney can leverage this time to investigate the evidence the plaintiff may have against you. This includes analyzing the claims made and determining the validity of the accusations.
Understanding the Plaintiff’s Process: The plaintiff’s attorney will likely attempt to ascertain which John Doe defendants to name and serve. They typically use this period to evaluate the evidence surrounding each accused downloader. Courts often extend the time allowed for plaintiffs to name defendants, in accordance with Federal Rule of Civil Procedure (FRCP) Rule 4(m), to ensure they are not wasting the court’s resources.
Developing Your Defense Strategy
Once you have consulted with an attorney and assessed your involvement, you can consider several defense strategies:
No Settlement Route: If you did download the content, you might choose to adopt a “no settlement” approach, where you refuse to negotiate. This could be effective in certain circumstances but be wary of the implications.
Ignoring the Claims: Some defendants opt to ignore the lawsuit entirely. While this is sometimes a viable approach, it comes with its risks, as it may lead to default judgments against you.
Minimum Statutory Damages: If named and served, you might explore strategies aimed at minimizing potential damages. This involves negotiating for the lowest possible statutory damages if the plaintiff is unwilling to settle.
Considering a Motion to Dismiss
If you believe the claims against you are fundamentally flawed—such as lack of jurisdiction, improper identification, or failure to state a claim—you might consider filing a motion to dismiss. A motion to dismiss challenges the legal basis of the lawsuit itself and can be a powerful tool if the circumstances align. However, the decision to file should be made after thorough consultation with your attorney.
Caution with Settlement Factory Attorneys
A significant concern in these cases is the presence of “settlement factory” attorneys—those who prioritize quick settlements over genuine defense strategies. Be cautious when engaging with attorneys who may have conflicts of interest, such as those who might actually represent the copyright holders. Ensure you find a competent and ethical attorney who has your best interests at heart.
Conclusion: Take the Right Steps Forward
In summary, rather than rushing into filing a motion to quash or any other immediate legal action, assess your situation carefully. Consult with an experienced attorney, understand your options, and devise a defense strategy that aligns with your circumstances. The decisions made during the “John Doe” phase are crucial in shaping your legal outcomes.
If you need personalized assistance, book a consultation with us at Cashman Law Firm, PLLC. Our experienced team is dedicated to guiding you through the complexities of copyright infringement lawsuits.
Why Arguing “No Evidence” is a Poor Defense Strategy
When facing a copyright infringement lawsuit, particularly from aggressive entities like Strike 3 Holdings LLC, some defendants might consider fighting their case on the grounds that the plaintiff attorney has no evidence. This approach, however, is not only misguided but can lead to detrimental outcomes for the defendant. Here’s why relying on this argument is a poor strategy.
The Flaw in the Argument
Even if you believe that “snapshot evidence”—which is often the basis for these cases—cannot definitively prove copyright infringement, there’s a critical flaw in this reasoning. Let’s break it down:
The Reality of Discovery: Once a defendant is named and served, the litigation enters the discovery phase. This is where both parties gather evidence, which can include depositions, interrogatories, and requests for documents. During this phase, your client will be subjected to questioning under oath.
Admitting Guilt: One of the pivotal questions your client is likely to face during discovery is, “Did you download the XYZ file using BitTorrent?” If your client answers affirmatively, that admission becomes the single most compelling piece of evidence against them. Even if you argue that the plaintiff lacks sufficient evidence, your client’s own admission of guilt trumps any legal argument you might present.
The Irrelevance of “Snapshot Evidence”: Once your client acknowledges having downloaded the file, the argument regarding the insufficiency of “snapshot evidence” becomes moot. The plaintiff’s case effectively transforms from a speculative claim into a straightforward assertion of copyright infringement, backed by the defendant’s admission.
“I can be the most educated, smartest, wizardly genius attorney ever to exist. No legal argument can change the fact that my client downloaded the film.”
This statement captures the essence of the problem. The legal intricacies of your defense mean very little in the face of an admission of guilt.
The Implications for Your Defense
Settling is Often Inevitable: If the plaintiff has evidence—in this case, your client’s admission—the only logical next step is to settle. Prolonging the litigation process can lead to increased legal costs, further complications, and a settlement amount that could have been minimized if addressed sooner.
Diminished Credibility: Relying on a defense strategy based on the lack of evidence can diminish your credibility. Judges expect the lawyers representing each side to provide realistic, actionable strategies, not wishful thinking based on flawed arguments.
Conclusion: Choose Your Defense Wisely
In copyright infringement cases, particularly those involving alleged downloading via BitTorrent, fighting based solely on the absence of evidence is not only foolish but could lead to severe repercussions for your case. Instead, focus on a more comprehensive defense strategy that takes into account the realities of discovery, the potential for admissions, and the overall goal of minimizing damages.
If you find yourself in this situation or need assistance navigating these challenging waters, book a consultation with us at Cashman Law Firm, PLLC. Our experienced team is here to guide you through the complexities of copyright litigation.
In Sum: Consider Your Case Before Filing a Motion to Quash
If you’ve received notice that your Internet Service Provider (ISP) is disclosing your information to a plaintiff attorney, it’s crucial to think beyond merely filing a motion to quash.
Reflect on the Allegations
First and foremost, take a moment to ask yourself:
Do you recognize the movie you are accused of downloading?
Did you download or stream it without a license? (e.g., via BitTorrent, Popcorn Time, etc.)
Regardless of your answer, the most important step is to act swiftly.
Hire an Attorney
Don’t hesitate to seek legal representation. An experienced attorney can help you navigate your options, including:
During this period when you are still an anonymous “John Doe,” you have precious time on your side. Don’t squander it by delaying action or trying to fight an uphill battle.
When to Consider Fighting
Defending against claims may be appropriate if:
You understand that every dollar spent on legal defense may not be recoverable, yet you prefer not to settle.
Before considering a motion to quash, reflect on the broader context of your case. Based on everything I have shared, ask yourself: “Should I file a motion to quash?”
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.
Strike 3 Holdings LLC MA Defendant Served by Jaqueline James based on Unanswered Massachusetts Subpoena from Strike 3 Holdings Lawsuit v. John Doe Subscriber Assigned IP Address …
Do Strike 3 Holdings defendants settle with Strike 3 Holdings ? or,
Do they litigate against Jacqueline James – the Strike 3 Holdings attorney who sued them?
You might have received a subpoena from your ISP months ago. That subpoena informed you that you were implicated as a John Doe Defendant in a copyright infringement lawsuit filed by a company called “Strike 3 Holdings LLC.” The lawsuit accused you of downloading Strike 3 Holdings’ adult films.
You did not try to quash the subpoena. You did not object to the request for early discovery filed by Strike 3 Holdings LLC’s lawyers. As a result, your ISP was forced to release your name to Strike 3 Holdings. [They shared your name, your address, and other relevant details with Attorney Jacqueline Marie James because she is one of Strike 3’s attorneys who file in the District of Massachusetts (MA).]
After a few months passed, she did not hear from you or your attorney. She may have filed one or more motions asking the court to extend her procedural deadline to name and serve you as a defendant. The assigned district judge approved these motions, but in copyright cases, they do not do this indefinitely.
As you likely just experienced, Strike 3 Holdings filed a motion for leave to name and serve you as the defendant. Likely in the document filed by Strike 3, Jacqueline James assumed that because you are the ISP account holder, you must also have been the one at the keyboard when her client’s copyrighted adult film files were downloaded (copied), streamed, or viewed.
Now that you were named as the defendant, you no longer have the protection of anonymity. With the amended complaint, the lawsuit title is no longer “Strike 3 Holdings LLC v. John Doe Subscriber assigned IP address XYZ,” but the lawsuit might have already exposed your name as a named defendant in the copyright infringement lawsuit now filed against you.
Looking at the documentation you received from the court, you likely have 21 days to retain an attorney, and decide whether you want to
Defend the copyright claims against you in litigation, or
Served: Strike 3 Holdings LLC Massachusetts District Court Attorney Jacqueline James 35
Overview of Strike 3 Holdings, LLC Lawsuits
Strike 3 Holdings LLC is a company which files court cases in federal courts across the US. It appears to me that their interest is not to stop the infringement, but rather, to lurk on the online file sharing networks and write down the IP addresses of the internet users who are copying their copyrighted content without a license.
By tracking which internet users are repeatedly downloading their copyrighted adult films, they say that they are able to “build a pattern of infringement,” which they list in the “Exhibit A” of their complaints.
However, according to the Federal Rules of Evidence (FRE), a plaintiff may not use past behaviors to prove that they did what they are being sued for in this lawsuit. This is referred to as inadmissible “Character Evidence.” Thus, their “Exhibit A” which contains the list of different dates and times that the ISP account holder allegedly downloaded their films is not there to prove guilt, but to multiply settlement numbers that they ask for.
Thus, while the common allegations in their lawsuits is that the John Doe Defendant infringed the copyrights that they ‘claim to have’ but often do not have (noting the “publication date” issue that we saw with Malibu Media, LLC lawsuits and also now here too), really, this copyright holder is merely looking to get as many high-priced settlements from each person they sue.
What happened in my lawsuit to get me to this point?
In order to enjoy this next section, you really need to want to know all of the nitty-gritty procedural details. Since most people are not interested in this, I am placing this in a collapsed pop-up, so that you can read it if you want to see it.
Procedural Steps - How I got here
You might be asking how they got your information in the first place. Jaqueline James likely filed a motion with the US District Court seeking leave to serve a third party subpoena prior to a Rule 26(f) conference.
A Rule 26(f) conference is a meeting between the parties of the lawsuit that needs to happen before the court schedules the initial scheduling conference.
In this conference, the parties are able to:
1) discuss the nature and basis of their claims and defenses,
2) consider or discuss settlement options,
3) make arrangements for initial disclosures,
4) or even to develop a discovery plan.
This conference cannot happen if the plaintiff’s attorney does not know who you are. So they ask the court to serve a subpoena on the ISP to determine which account holder was assigned the IP address on the dates and times when the downloading of their copyrighted titles took place.
Upon receiving this request, typically the courts will issue a court order granting the request.
Once receiving permission from the court, Strike 3 was then allowed to serve a Rule 45 subpoena on the Internet Service Provider (ISP) associated with the IP address allegedly involved in copyright infringement. This forced your ISP to provide them information responsive to the subpoena, which included your name, your address, possibly your computer’s MAC address, along with relevant information about what IP address was assigned to you on the dates and times requested.
Your ISP probably gave you the opportunity to contest the subpoena. You would have done this by filing a motion to quash or modify the subpoena, through which you would have contested the disclosure of your identity. However, any research you did on how to file a motion to quash the subpoena probably left you doubting (rightfully so) whether it made any sense to do this. So you probably did the right thing and you did not file this document.
Moving forward in time, the lawsuit continued for the next few months, and you were not checking the court’s docket. You did not hire an attorney to represent you or to watch what was happening in your lawsuit, and you had no attorney to settle the claims against you.
Seeing that they were not getting the result they wanted from implicating you as a John Doe, the plaintiff decided to name and serve you. They made a motion for leave to file an amended complaint, this time naming you by your real name as the accused defendant.
They then needed to give you notice that you were being named in your lawsuit, so they had to serve you with the complaint and summons. In the legal language, this is the “effectuate service on defendant” step. They are allowed to do this using any reasonable means, including written notice by mail, or having someone serve you by hand.
This is why someone probably knocked on your door and handed you a copy of the complaint. To your shock, while you were once anonymous in this lawsuit, now you personally have been implicated (by your real name) as a party in the lawsuit. This is likely why you are now reading this article.
Why is my copyright infringement lawsuit is filed in the United States District Court (the federal court) in Massachusetts?
Jackie James, the attorney from New York (who usually files lawsuits in the Southern District of New York) has branched out her lawsuits into the Massachusetts District Court.
This was strange for me because this federal court does not have many similarities with the New York Southern District Court, and in 2023, this state does not have many cases filed by them.
My best guess is that Boston and other wealthy neighborhoods are in this state, and just like they did with their Ohio lawsuits, it appears to me that they chose this state because they believed that they could receive large settlements from these defendants.
Why? Because Boston does not only have money. Many who live there have prestige, and would pay a settlement just to keep their name out of their lawsuits.
But this state also has many students, and from personal experience, many of them have been trapped in the ‘spider web’ of their lawsuits. Many of these people have spoken to me, and they cannot even afford to settle. But I am betting the logic is that even for them, if their parents could pay high tuition fees for the universities here, they would also pay to keep the names of their college kids away from an adult film lawsuit.
Below is a list of cases that were filed here, separated by month:
As you can see by their filing patterns, many of these case numbers are literally one-after-the-other (1:23-cv-13247, 1:23-cv-13248, 1:23-cv-13249, etc.). This means that they filed all of their cases together in one batch, 8-12 lawsuits per month with a filing fee of $400 per lawsuit, per month.
In sum, they filed in Massachusetts because they are looking for a VERY GOOD RETURN on the filing fees they paid to file these copyright lawsuits.
Served: Strike 3 Holdings LLC Massachusetts District Court Attorney Jacqueline James 36
“I ignored the Strike 3 Holdings subpoena and did not file a motion to quash. Now I am in litigation and I am no longer anonymously identified by my IP address ?”
It makes sense that you ignored the subpoena:
The lawsuit was against a “John Doe” which was a placeholder only. You weren’t the defendant yet.
The plaintiff’s attorney (Jacqueline James, or “Jackie James”) made the assumption that the ISP account holder was the one who infringed her client’s copyrights. You are the account holder. You know you didn’t download their copyrighted titles.
The letter from the ISP claimed that unless you file an opposition with the court, your ISP would be forced to hand over your name and address to the plaintiff’s attorney. And such motions to quash have usually failed because they sue the accused account holders in the state in which they live, so jurisdiction is proper.[There was no way to stop the disclosure of your name, so you did not do anything.]
Then there are often other factors — for example, if as the account holder, you did not do the downloading or you wished to defend the lawsuit in court. So you waited to be named and served so that you could file an answer in court.
Lastly, if the defendant did not do the do the download, then there is NO reason to settle. Maybe you did not do the downloading.
(There are also those who simply ignored the subpoena, threw them in the trash and ignored them without justification [oh well, can’t change the past], or who simply could not afford to hire an attorney or pay a settlement.)
What the named and served defendants did not expect, however, was Jacqueline James. Jackie James is a formidable attorney, and she will not let a person out of a lawsuit just because they ask nicely.
If you ignore her attempts to contact you, she will follow-up with you, or as you saw yourself with your own case…
Jacqueline James WILL name and serve you if you ignore her.
This is her right as an attorney for the plaintiff, and it is her duty as an attorney to protect the copyright rights of her client. It is also her personality.
IF YOU DID NOT DO THE DOWNLOAD, it is probably a good idea to hire an attorney [at a minimum] to let the plaintiff’s attorney Jacqueline James know that you did not do the download.
IF YOU DID DO THE DOWNLOAD, it also is probably a good idea to hire an attorney, especially now that you were forced into defending your case in court, and are looking at a 21 day deadline to file an answer with the court.
You can still have an attorney negotiate a settlement with Strike 3 Holdings, LLC, even if you are a student, and even if you cannot afford the settlement numbers they usually ask for (which typically is $750/title, and then $600/title*).
* I want to also mention that there are some attorneys who are advertising significantly lower settlement numbers, e.g., $100/title, or $50/title. Posting these numbers without context in my opinion is dishonest, because there is context missing.
YES, I have seen settlement numbers these low.But only 1) where the client cannot afford the settlement numbers they are asking for, OR 2) where the accused defendant downloaded SO MANY TITLES (e.g., 100+ titles), that it would be impossible for them to pay the range of settlement numbers this plaintiff usually asks for.
Served: Strike 3 Holdings LLC Massachusetts District Court Attorney Jacqueline James 37
Who is Jaqueline James, the Strike 3 Holdings attorney listed on the docket of my lawsuit?
Jacqueline M. James, Esq. (a.k.a. Jaqueline James, or “Jackie” James) is the attorney who filed the lawsuit against you. I have written quite a bit about her over the years, as Jackie James used to represent Malibu Media, another prolific copyright troll. Thus, what I write about her, I write from personal experience.
You should consider Jacqueline James as a formidable opponent. Not only is she skilled at maneuvering through the federal courts for her clients, but she is ethical to the rule. I remember personally a time when Malibu Media was asking their attorneys do things which were unethical. Instead of doing something which would put her law license at risk, Jackie James stopped representing Malibu Media.
I was quiet about this when it happened, but my job as a defense attorney is to know my opponents — not only what strategies they employ in the courtroom, but it is important to know whether I can trust them or not when defending a client, or when asking them to ‘break a rule’ to allow one of my clients to get out of a lawsuit when the ‘law’ would ordinarily not let them go.
For example, I often take clients who are in terrible circumstances.
In one case, my client was a woman, but it was her husband who was doing the downloading of her client’s copyrighted videos. The problem is that the husband was unwilling to stop infringing their copyrights, and he was physically abusive towards his wife — the account holder, and my client.
I spoke to Jackie about the circumstances, and I explained that the infringements were not going to stop. I also explained that anything that happened to the husband, he would physically take out on his wife. Jackie and I arranged a modest settlement that she could pay so that she could get out of the lawsuit, and I helped this woman get help to separate herself from her abusive husband.
In sum, I know you would expect me to claim that Jacqueline James is a terrible person because she is filing these lawsuits against so many internet users. But she does have a heart, and she does have a strong sense of justice. In other words, take her seriously.
What are Legal Defense Strategies for my Strike 3 Holdings lawsuit?
Legal defense strategies are straightforward in lawsuits like these. The ISP account holder was accused of infringing their copyrighted adult titles because they clicked on a link and ‘copied’ their titles without permission of the copyright owner.
The burden of proof to prove copyright infringement is on the plaintiff. The one who files the lawsuit must prove that it was the accused defendant who did the download. The burden of proof is low because these cases are ‘civil’ cases — meaning that the plaintiff is looking for money damages. These cases are NOT criminal cases, which would seek to put the defendant in jail.
Thus, as a civil case for money damages only, the burden is on the plaintiff to prove that it is “more likely than not the accused defendant” who downloaded, streamed, viewed, or copied their copyrighted titles without a license. “More likely than not” is roughly “more than 50%.” This is very low bar for them to prove their case.
The plaintiff’s attorney will likely prove their case after naming and serving the defendant, through one of the discovery tools, e.g., a deposition, or an interrogatory.
If a defendant did not do the downloads, then they are not responsible for the activities that happened on their internet account without their knowledge and authorization.
Thus, the best legal defense strategy in one of these cases is simply informing the plaintiff that they did not do what they believe they did. Then, the plaintiff’s attorney will determine whether they will name and serve the defendant.
If they name and serve the defendant, then the plaintiff’s attorney will likely use the discovery tools (e.g., the deposition or the interrogatory).
A DEPOSITION is where the defendant will show up at the plaintiff attorney’s office (or a designated location) to answer questions under oath. The plaintiff might ask them to also bring their laptop, their computers, and/or their phones so that they can have a digital forensics expert look for evidence that they have downloaded their copyrighted titles.
In the deposition, they will answer questions under oath. This is the same thing as giving testimony under oath. For example, the plaintiff’s attorney can ask, “Have you ever downloaded, streamed, or viewed adult films using online file sharing programs?”
Answering “yes” to that question helps them prove that it is more likely than not you who did the download of their copyrighted films.
And yes, you as the defendant can mount your own defense:
You can argue that someone else did the downloading without your knowledge or authorization.
You can argue that the plaintiff does not have the PCAP file to prove that the downloads actually happened.
You can argue that the “Exhibit A” is not proof that you were at the keyboard when the downloads happened. It is not evidence except to show circumstantially that someone somewhere who was using your IP address downloaded their titles.
You can also argue that the complaint is conclusive and defective, because it is a illogical jump for them to claim that 1) they believe someone using an IP address assigned to the defendant’s account downloaded their copyrighted titles, and 2) THUS IT MUST HAVE BEEN THE ISP ACCOUNT HOLDER WHO DID THE DOWNLOADS. They need additional evidence to suggest that it was the ISP account holder and not someone else who did the downloading.
Obviously, making these arguments is something that an attorney should do when defending against these lawsuits.
The point is that IF YOU DID NOT DO THE DOWNLOADING, then you could technically move through the lawsuit, answer the questions, and after the deposition, have your attorney file a motion for summary judgement. The reason for this is because after going through all of these motions, it is unlikely that the plaintiff’s attorney will be able to prove that it is “more than likely” you who did the downloading.
And yes, if you have evidence showing that you were out of town when the downloading happened, of course, use that positive evidence to discredit the “Exhibit A” list of dates and times when infringement allegedly happened.
But in sum, anything that you introduce as evidence in your defense in my opinion is not especially helpful BOTH 1) if you did not do the download, and 2) if you did the download.
IF YOU DID NOT DO THE DOWNLOAD, then the plaintiff’s attorney — no matter what legal tool of discovery they use — they will not be able to prove that you were the downloader.
IF YOU DID DO THE DOWNLOAD, then you shouldn’t be in litigation; you should be settling the claims against you.
Why? Because you know the plaintiff’s attorney will ask you questions under oath and you know they might also search your computers, your electronic devices, and your phones. Even without any evidence to be found by the digital forensics expert, if you will be admitting guilt in the deposition or in your answers, you probably just lost the case.
Served: Strike 3 Holdings LLC Massachusetts District Court Attorney Jacqueline James 38
Can I still settle with Strike 3 Holdings now that I am named and served as a defendant?
The “SUMMONS IN A CIVIL ACTION” that you received in your STRIKE 3 HOLDINGS, LLC v. JOHN DOE lawsuit requires you to file an answer with the court within 21 days of receiving the summons.
THAT MEANS THAT IF YOU DID THE DOWNLOADING, YOU HAVE 21 DAYS TO RETAIN AN ATTORNEY AND NEGOTIATE A SETTLEMENT.
Otherwise, you might be on a path which inevitably leads to you admitting guilt to copyright infringement.
Now obviously, failing to file an answer could mean that you might end up with a default judgement against you.
FAILING TO FILE AN ANSWER means that you lost the lawsuit, and are likely on the hook for a judgement that will likely be the $150,000 statutory damages that the plaintiff asked for. Yes, there are other judgement amounts as well based on whether you ‘intentionally’ downloaded the titles or ‘unintentionally’ downloaded them.
The point is that once you receive notice that you are a defendant in the lawsuit, PLEASE do not wait. Settlements should take roughly two weeks, and while we can do them in a much shorter period, you want to give your attorney as much time as possible to negotiate the settlement.
Why? Because settlement negotiations are not only about throwing price offers and counteroffers back and forth.
There is timing involved.
There are explanations to be made.
There is documentation sometimes needed to prove the settlement numbers we offer.
And sometimes, it is simple good negotiating tactics to time your responses, and we need every day possible to maximize our leverage in our negotiations.
Served: Strike 3 Holdings LLC Massachusetts District Court Attorney Jacqueline James 39
Benefits of Hiring a Defense Attorney in MA and NY.
YES, you should have an attorney representing you in these lawsuits.
YES, you should have an attorney negotiate a settlement on your behalf.
Deciding to represent yourself “pro se” is allowed, but you do not know the Federal Rules of Civil Procedure (FRCP) or the Federal Rules of Evidence (FRE) which guide an attorney in knowing what the other side is allowed to do, and what they are not allowed to do.
Potential consequences of not having legal representation is simply that you are unequipped with the legal skills needed to navigate through the lawsuit.
You might miss a deadline and lose your case, or you might agree to terms which an attorney would edit out of their boilerplate agreements.
You also might not have the leverage an attorney might have, as most attorneys have negotiated thousands of contracts, releases, and settlement agreements over their legal career.
Thus, we are able to spot when a settlement agreement has a change edited into it, or when some term looks different from what the settlement terms should look like.
We also know how and when to ask for a change in the terms (in a way that the other side will agree to the changes).
Lastly, we know the order of when someone is bound to an agreement, because doing things out of order might get you dismissed from a lawsuit, but…
If and when they sue you again and they ask when did you sign the agreement, and when did you process the settlement payment, doing it out of order could nullify or invalidate your agreement even if both parties sign the agreement.
All of these examples thus far are relevant for settlements. But IN LITIGATION:
An attorney knows how to calculate deadlines, and we know what deadlines are our deadlines and which deadlines are their deadlines. Knowing these dates are important in your defense, because if a plaintiff’s attorney misses a deadline, it might be a better idea to let that mistake kill the case (obviously depending on the magistrate judge and his / her ruling) rather than to continue fighting your side of who did (or did not do) what. A skilled attorney would see this error and would know to sit back and do nothing, and when to mention it to the court.
Lastly, an attorney should know:
the Federal Rules of Civil Procedure,
the Federal Rules of Evidence, AND
the local rules of the court in which the lawsuit is filed.
Judges often have their own rules as well, and violating those rules can cost you a win you otherwise deserve.
This is a lot to navigate when you are a skilled attorney. For a non-attorney, you might not even be aware that these rules even exist.
Served: Strike 3 Holdings LLC Massachusetts District Court Attorney Jacqueline James 40
In CONCLUSION:
In conclusion, if I have done things correctly in writing this article, I have put this article in front of you right after you were named and served in your Massachusetts District Court lawsuit.
If you were named and served in another federal court, e.g., the New York Southern District Court, or the Texas Southern District, or even the California Southern District Court, of course this information is useful for you as well.
(I just wrote this article when I saw that Jackie James was serving so many of the older Massachusetts cases who did not settle).
I wrote this article with the hope of giving you a plain and simple explanation of the various considerations you should have if and when you are named and served in your lawsuit. And no, Jacqueline James is not the only Strike 3 Holdings attorney out there. There is Lincoln Bandlow, John Atkin, along with 20 other characters, each of whom have their own skillsets, their own set of proclivities, and risk levels when deciding how to approach them.
With Jacqueline James, you see now that she names and serves defendants who do not approach her after receiving the subpoena from their ISP. She waits for an attorney to contact her, and if nobody contacts her, then she names and serves her defendants.
Lastly, there are times when an attorney licensed to practice in your state is a must, and there are times where another attorney who has extensive experience with your plaintiff’s attorney could yield a significantly better result than someone who is just trying to navigate the federal rules in a copyright infringement case.
On a personal note, I want your business only if I can help you. If you speak with me on the phone, I will ask you questions that are personal and possibly uncomfortable, but I am asking you with the intention of finding out methods and strategies that will work for your particular situation and with your personal financial circumstances in mind.
Sometimes a settlement is NOT the right answer for a client.Just because a person did the downloading does NOT mean that they should settle. There are so many angles that I help those who speak with me see that I’ll help them and share information even if it causes them not to retain me as their attorney.
I hope this article was helpful, and please feel free to message me if you have any questions or comments about what I have written.
Served: Strike 3 Holdings LLC Massachusetts District Court Attorney Jacqueline James 41
— FOR MORE INFORMATION: Again, if you have been implicated as a John Doe defendant in a lawsuit, 1. and 2. (below) are the TWO (2) main articles you should read immediately:
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. The attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me. However, 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 in any e-mail.
