Category Archives: Gary Fischman

Gary Fischman sues 120 Texas Defendants – Venice PI, Headhunter, UN4

Venice PI & Headhunter lawsuits come to Texas.

Literally one month ago, I wrote about the appearance of the UN4 Productions lawsuits suing accused downloaders of the Boyka: Undisputed 4 movie in Texas.  Apparently, Gary Fischman, the plaintiff attorney for the various RIGHTS ENFORCEMENT (RIGHTSENFORCEMENT.COM) subpoena based movie infringement lawsuits has earned the right to sue now for the Venice PI, LLC and Headhunter, LLC movie production companies.

Which movies are affiliated with these Texas lawsuits:

  • Venice PI, LLC is suing for the unlawful download or viewing of the “Once Upon a Time in Venice” movie,

    venice-pi-subpoena-once-upon-a-time-in-venice-movie-lawsuit Venice PI
    Venice PI, LLC (“Once Upon a Time in Venice”) movie lawsuits
  • Headhunter, LLC is suing for the unlawful download of “A Family Man” movie (not to be confused with Nicholas Cage’s “Family Man” movie from a number of years ago.)

    Headhunter LLC ("A Family Man") movie lawsuits
    Headhunter LLC (“A Family Man”) movie lawsuits
  • UN4 Productions, Inc. is suing for the unlawful download of the “Boyka: Undisputed 4” movie.

    UN4 Productions Boyka: Undisputed 4
    UN4 Productions (“Boyka: Undisputed 4”) movie lawsuits

Have you read enough? Book Now to get help. > > >

List of Texas cases filed by Gary Fischman in the last month:

HEADHUNTER (17 “JOHN DOE” TEXAS DEFENDANTS):
Headhunter, LLC v. Does 1-17 (Case No. 4:17-cv-02352)

UN4 PRODUCTIONS (51 “JOHN DOE” TEXAS DEFENDANTS)
UN4 Productions, Inc. v. Doe 1 et al (Case No. 4:17-cv-01685)
UN4 Productions, Inc. v. Does 1-13 (Case No. 4:17-cv-01834)
UN4 Productions, Inc. v. Does 1-16 (Case No. 4:17-cv-02115)

VENICE PI (55 “JOHN DOE” TEXAS DEFENDANTS)
Venice PI, LLC v. Does 1-10 (Case No. 4:17-cv-02285)
Venice PI, LLC v. Does 1-13 (Case No. 4:17-cv-02395)
Venice PI, LLC v. Does 1-16 (Case No. 4:17-cv-02203)
Venice PI, LLC v. Does 1-16 (Case No. 4:17-cv-02244)

Have you read enough? Book Now to get help. > > >

WHAT TO KNOW ABOUT YOUR LAWSUIT:

To those 120+ Defendants who are implicated by Gary Fischman as “John Doe” defendants in this lawsuit: Understand that the Texas federal judges will likely allow Gary Fischman to send a subpoena to the Comcast & AT&T ISPs to obtain the identities of those accused of downloading the various movies.

1) Read the Frequently Asked Questions (FAQs) about your particular lawsuit.

First, read about your particular movie lawsuit (see FAQs on the lawsuits here):

NOTE: Do not be fooled — each of these movies have become lawsuits because of Carl Crowell and his “common trollRIGHTS ENFORCEMENT (RIGHTSENFORCEMENT.COM) entity, of which Gary Fischman appears to be his Texas local counsel.  We understand that Crowell (or one of his attorneys) have contacted each of the movie production companies and have secured a license to sue for copyright infringement on their behalf.  Thus, the various FAQ pages will be similar, because it is the same entity that is behind the scenes of each of these movie lawsuits.

2) Learn about what an “objection with the court” or a “motion to quash” is, and whether you want to file one.

The letters from the ISPs will tell you that you have 30 days to file an objection with the court (which is referring to a motion to quash) before they are forced to hand over your information to Gary Fischman.

Do not get trapped in an emotional rush to file a “motion to quash” just because you learned that a motion to quash filing could stop your ISP from being required to hand over your information to the plaintiff (such a filing has actually been UNSUCCESSFUL, read why).

NOTE: The link I provided you above is from an article I wrote in *2010*, and now we are in 2017.  This should give us some credibility, if we did not already have some in your eyes that we have an idea of what is going on in these cases.  The motion to quash issue was figured out by us attorneys SEVEN YEARS AGO, and yet there are still new law school graduates and other attorneys who still try to sell “motion to quash” packages, claiming they will “expose the fraud” of these cases for the same amount of money you could have settled for and guaranteed an exit from the lawsuit (just to be clear, a settlement is NOT the least expensive option in handling cases such as these).  A motion to quash is NOT THE PLACE TO FIGHT YOUR LAWSUIT, and judges will get upset if you misuse this tool.  A motion to quash is a tool to determine 1) whether the subpoena is valid, and 2) whether the federal court has PERSONAL JURISDICTION over the accused defendant.

Read about motions to quash here, understand the likely response if you file a motion to quash, and understand the likely question a federal judge will ask if you file a motion to quash. For those of you who do not want to switch to another article, the short answer is that a motion to quash is a good tool to stop the ISP from handing out your information if the federal court does not have PERSONAL JURISDICTION over you (e.g., if you live in one state, but are sued in another state). However, if you (an unnamed “John Doe” defendant) file a motion to quash, understand that the likely response from the plaintiff attorney is to oppose your motion to quash. The plaintiff attorney will likely state that you do not have STANDING to file the motion to quash because you are not a named defendant in this case. [Plus, the subpoena was not issued to you, but to your ISP, and thus you are not a recipient of this subpoena and it should be the ISP who should file the motion to quash, not you.]  In short, don’t jump into a motion to quash frenzy just because you learn that the legal mechanism to stop a subpoena recipient from complying with the subpoena is called a motion to quash.

Have you read enough? Book Now to get help. > > >

3) Learn about anonymity – how long you remain anonymous after receiving the subpoena from the ISP, and at what point your anonymity ends.

Second. Be aware of your anonymity, and use it to your advantage. Understand each stage of the lawsuit, and know at what point you lose that anonymity. The reason this is relevant to you is because there is a finite amount of time in which you remain a “John Doe” defendant. During this time, Gary Fischman might learn who you are, but your information is in no way made public, and your involvement as a potential defendant in this lawsuit is not made public until you are named and served as a defendant.

This is relevant because during this time, you can hire an attorney to converse with the plaintiff attorney on your behalf, and everything is done anonymously, meaning that your contact information never shows up on the court’s docket, on your record, in Google searches, or anywhere else. This is relevant because once you lose your anonymity, the fact that you were accused in a federal court of stealing a copyrighted movie becomes public knowledge for anyone who does a look-up of your name, including potential employers.

A COMMON MISCONCEPTION is that the due date on the ISP subpoena is the date you lose your anonymity.
Wrong.
The date you lose your anonymity is the date your plaintiff attorney realizes that he will not be getting a settlement from you and he decides to change your status from a “John Doe” defendant to a “named defendant (your name as the defendant)”.

4) Learn about settlement factories, settlement options, and *when NOT to settle*.

Lastly, be aware that there are a number of settlement factories out there who will convince you that settling is the “cheapest” method of getting out of this case. This is simply not true. The fact of whether you actually downloaded the movie is possibly the most relevant piece of information in determining whether to settle. If you did not do it, then hiring an attorney to convince the plaintiff attorney not to name and serve you because you did not do the download could be the smartest thing you could do in any of these cases. Question your attorneys and ask what percentage of cases they settle, and what percentage of cases they do not settle.

What if you DID do the download (or you DID watch the movie)?

If you have done the download for which you were sued (or if you have watched the movie), the second most relevant is what else you have downloaded, watched illegally, or what else is in your bittorrent software’s download folder. The reason for this is because some bittorent clients “announce” to the bittorrent network which movies, music, e-books, and software you have downloaded, and which are actively in your “Download” folder available to be uploaded.

With this information, the plaintiff attorneys search which files are available from your IP address, and they assemble a list of files you have downloaded. If you are an avid downloader, (while this information cannot be used to prove you downloaded THIS movie,) this evidence of “other titles downloaded” will affect how a plaintiff attorney such as Gary Fischman sees you as a potential target of this lawsuit. It will affect your chances of being named and served, and it will affect the leverage you have in settlement negotiations. This is where a good lawyer is probably a good idea, especially one with leverage in settlement negotiations — one who is willing to step into court if the settlement negotiations go awry, even if it is simply to admit guilt and argue minimum $750 statutory damages from the court.

Have you read enough? Book Now to get help. > > >

In Summary:

In the end, having your attorney know the personality of your plaintiff attorney is possibly one of the most important items to consider when hiring an attorney. Specifically with Gary Fischman, he has the mind of an engineer, and he treats his cases as such. Understanding how he thinks in considering each defendant is important in obtaining the best result, whether that is not settling the case, negotiating a settlement, or fighting the claims against you in litigation.


[CONTACT AN ATTORNEY: If you have a question for an attorney about the various Texas-filed cases and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number].

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.

Why would copyright trolls show evidence of ‘other downloaded movies’ if they have evidence of infringement?

ANSWER: Insufficient or non-existent evidence.

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

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

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

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

HERE IS THE ROADMAP:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Character Evidence of 'Other Movies Downloaded' To Prove The Download of THIS movie.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IN SUM: WHICH ONE IS IT?

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

My opinion: it is both.


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.

ME2 Productions Inc. Subpoenas FAQ | What You Need to Know

While our law firm represents ME2 Productions, Inc. defendants as clients in a number of states (specifically, those states in which we can ‘pro hac’ into and represent a defendant should settlement negotiations go awry), I simply cannot track every single bittorrent-based lawsuit that is filed across the U.S.   However, I do know of subpoenas received by John Doe Defendants in a number of cases are due today.

This article should be a simplistic “what do I do” article.  Nothing new will be introduced here for those of you who have read my blog in the past.  At best, this will be a quick refresher of what happens at the pretrial stages of a copyright infringement lawsuit before a John Doe Defendant is named and served.

Because I am neck deep in cases, instead of writing out this article, I am dictating it into a recorder and am paying someone to transcribe it for me. Thus, pardon the conversational tone.  This is really the way I speak.

[Lastly, some of you have e-mailed me asking why I am only making 2-3 time slots available each day on the https://www.torrentlawyer.com/calendar/ scheduling site when there are literally hundreds of John Does affected by these lawsuits.  The simple reason is because I am managing the firm’s inflow of clients (I will not take every client I speak to, but I will hold your hand until you find an attorney), and I do not believe in flooding our firm with 100+ new clients for one copyright holder and treating them all the same way in a turn-key fashion.  I used to think that this could save our clients money, but my experience after representing clients is that if I am able to take each client separately and negotiate each client the best I can, I am often able to get the client released from liability without paying any settlement (if the client did not do the download), and if they did the download, I am able to negotiate significantly lower settlements when I handle client circumstances individually rather than as a group.]

ME2 LAWSUIT SUBPOENA Q&A:

Question: “I received a subpoena from my ISP about the ME2 Productions, Inc. v. Does lawsuit.  What do I do?”

Answer: Chances are the lawsuit was filed in the state in which you live.  If you live outside of the state in which you were sued, that federal court likely does not have “personal jurisdiction” over you.  For circumstances like this, you may consider filing a motion to quash.

SHOULD I FILE A MOTION TO QUASH?

Question: “Should I file a motion to quash even though I have been sued and I live in the state?”

Answer: If you file the motion to quash, the court will set a hearing in order to determine whether they have personal jurisdiction over you.  The judge will ask whether you live in the state.  If the answer is “yes,” then motion to quash will likely be denied.  I’m simplifying, but this is the point.

NOTE: For accuracy, you were not sued.  You are at this point merely implicated as a “John Doe” Defendant, which means that your Comcast ISP (or whatever ISP you have) has identified you as being the account holder who was assigned an IP Address (e.g., 123.848.245.163), and that IP Address was ‘seen’ or ‘caught’ participating in a bittorrent swarm where the download allegedly happened.

Question: “ABC Lawyer told me that even if I live in the state where I was sued, I can still hire an attorney who will file a motion to quash for me for $2,500 where he will expose the copyright trolls’ scam and maybe cause the judge to dismiss the case.  Should I pay for one of these?”

Answer: The motion to quash is not the proper place to raise issues relating to the actions of the copyright holders.  Filing long-winded motions to quash will simply prompt the judge to ask, “yes or no, does your client live in this state?”  When the answer is yes and your lawyer turns to you and informs you that “your motion to quash failed,” you’ll realize that you wasted your money.

There are other procedural times to fight your case, especially if you did not do the download.  Fighting your case in the motion to quash is generally a really bad idea.

Question: “Who cares if I was ‘seen’ downloading?  Doesn’t everyone use bittorrent anyway? Why is this illegal?”

Answer:  The short answer is that downloading and piracy is socially acceptable as a ‘tolerable evil’, but it is still nevertheless illegal.  It took me a few tries to answer this question, and in trying, the following two blog articles came of it:

1. ‘The boot of government crushes the skull of its citizen’ when it comes to encryption and anonymity, and

2. The Evolution of Piracy and the ‘coincidence’ that early copyright cases were rooted in pornography-based content.

In sum, copyright holders are finicky about whether, how, and in which way they will allow their copyrighted film to be shown.    Copyright law, as encoded in 17 US Code § 106 describes a number of exclusive rights given to a copyright holder (which means that the copyright holder is given authority to legally sue and destroy the financial futures of anyone who violate and/or infringe those rights).  Of those exclusive rights (the right to make copies (download), the right to distribute copies (share/upload), the right to display (stream), if any of these are infringed, the copyright holders get antsy because each violation of these rights stops them from being able to profit from the movie (or ‘work’) they created.

The peer-to-peer networks have been a source of angst for the copyright holders because until now, each of these ‘exclusive rights’ are taken out from the control of the copyright holder, and are given to the internet users.  When movies are listed on a bittorrent website and are downloaded, the copyright holders do not profit from the piracy, and while there has been some considerable debate of whether movie companies actually lose money from piracy (I am on the side that their ticket and DVD sales and licensing fees are hurt by piracy, but the damage is not as exaggerated as they claim it to be), but as a result of the loss (perceived or not, real or not), today copyright holders to consider it ethical to sue end user downloaders for the full $150,000 statutory damages for the download of one movie.

My opinion is that suing downloaders is misguided solution to the piracy problem, and that a better solution would be either compulsory licensing from the ISP, or simply providing better competitive solutions to give internet users the ability to PAY for access to cable TV and traditional TV networks (without paying the inflated cable bill prices they are still trying to charge).

Question: “Before Comcast hands out my information, am I still anonymous?  If as a John Doe I am not yet a defendant in the case, at what point do I become a defendant?”

At this point, your plaintiff attorney does not have your name, and neither does the court.  At this point, you are also still anonymous, which means that other than the filing fee, the plaintiff attorney has not yet spent any money or time investigating you or your involvement in the lawsuit.

You do not become a defendant until you are ‘named and served.’ This would happen later on in the lawsuit after the plaintiff copyright attorney tries to 1) convince you to settle, or 2) they are unable to contact you, or 3) they have formed a belief that you (the ISP subscriber) are the downloader.

Once someone knocks on your door and serves you with a copy of the complaint (or once you are served by a number of other methods), only then do you become a defendant in the lawsuit.

IS COMCAST (OR MY ISP) FORCED TO COMPLY WITH THE SUBPOENA?

Question: “Can I call Comcast (or my ISP) and tell them I object to them sending out my information?  Isn’t giving out my information a crime?”

Answer: Comcast is under a duty to comply with the subpoena, which was ordered and signed by the federal judge for your case.  The ISP can and does often ignore the deadline set by the attorney in the subpoena sent to the ISP [they comply whenever they decide to comply, and if the plaintiff attorneys don’t like it, they can sue them or bring them into court, but they almost never do], but the ISPs almost always comply.

Even if you call your ISP and complain, and even if you object to them sending out your information, they will tell you that they must comply and that they WILL comply unless you file an objection with the court.  This objection is the motion to quash we discussed before.

There was a time when these bittorrent-based ‘copyright troll’ lawsuits were new (back in 2010), and there was a time that I researched whether a subscriber can sue his ISP for sharing his information with the copyright holders over his objection.  I even considered representing John Doe Defendants at the time as a class action lawsuit against the ISPs, however, the case law was horrible, and the damages weren’t worth the time or money the clients would have paid in order to sue their ISPs.

100% ANONYMOUS SETTLEMENTS BEFORE ISP COMPLIES WITH SUBPOENA?

Question: “Should I have my attorney contact the plaintiff attorney before he gets my identity from my ISP?  Can I settle with the plaintiff attorney and stop my Comcast ISP from divulging my identity to the plaintiff attorney?”

Answer: Generally, this is not required.  I have had circumstances that the defendant ABSOLUTELY wanted to keep his involvement in a lawsuit ANONYMOUS, and in cases such as this one [where the defendant had something to lose if the plaintiff attorney learned his identity], then yes, I could negotiate a 100% anonymous settlement before the ISP hands out the John Doe’s information to the plaintiff attorney.  I can even stop the ISP from complying with the subpoena.  How??

I have been successful asking various plaintiff attorneys to write or transmit a letter to the ISP and cancel the subpoena as to that particular John Doe Defendant, and both the paid attorney and the ISP happily complied, and my client remained 100% anonymous.  Win-win.  The client remained anonymous, the ISP had one fewer infringement file to take care of, and the pocket-filled plaintiff attorney saved an extra few bucks because he did not have to pay the ISP for the IP address lookup for that John Doe Defendant (sometimes ISP charge plaintiff attorneys large sums of money to lookup and handle the files of each of the John Doe Defendants).

However, one thing that is LOST when negotiating BEFORE the ISP hands over your information is LEVERAGE.  If the John Doe approaches the attorney asking to be anonymous, the plaintiff will want to know, “what does he have to hide?”  In addition, because any anonymous negotiations will arouse suspicion in the eyes of the plaintiff attorney, they might be less willing to negotiate down the price in a settlement negotiation when they sense that the other side has something to lose by having their name exposed to him/her.  We can still do the settlements anonymously and clients still do request this, but be aware that leverage is lost when premature negotiations are made, and thus the cost of the settlement to the copyright holder may be higher than the ordinary negotiation.

WHAT HAPPENS AFTER COMCAST COMPLIES WITH THE SUBPOENA?

Question: “Do I become a defendant in the case after my ISP complies with the subpoena and hands out my information to the plaintiff attorney?”

Answer: Again, no.  As far as the court is concerned (and as far as the world is concerned), nobody except you, your ISP, your attorney, and the plaintiff attorney know your name.  Robots and spiders who like to ‘spider’ legal sites and post information on the parties of the cases also cannot know who you are, even after the ISP complies with the subpoena.

Rather, when the ISP complies with the subpoena, likely, they will send over a spreadsheet 10-20 lines long (depending on how many John Doe Defendants there are in the case), and you will be one of those ‘lines’ on the spreadsheet.  The plaintiff will learn who you are, but you will remain an anonymous John Doe Defendant until the plaintiff attorney decides to name and serve you.

When the plaintiff attorney receives the list of names and contact information for each John Doe Defendant, he will separate that pile of names into two piles: 1) subscribers that are represented by attorneys (where their attorneys sent a ‘notice of representation’ to that attorney), and 2) subscribers who are not represented by an attorney.  The experience of the ‘Subscribers who are not represented by attorney’ has best been described to me like ‘being called by a horrible creditor for a debt; only that creditor is an attorney and could ruin my life.’

Question: “Will the ‘copyright troll’ attorney contact me to extort a settlement?”

Answer: Funny enough, likely not.  Attorneys have gotten reprimanded by the courts in recent years for abusive practices such as sending settlement demand letters (I used to refer to them as ‘scare’ letters because their purpose was to frighten and scare the defendants into paying the requested settlement amount).  So rather than saying, “we want $6,000 for so-and-so title (or whatever they are asking),” the plaintiff attorneys will simply state that they have every intention of moving this case to trial, and if the defendant or his/her attorney wants to discuss settlement options, they are more than willing to cooperate.

So no, they will likely not try to contact you.

Question: “If they do not contact me, should I just ignore and do nothing until they name and serve me?”

Answer: Waiting to be named and served is a DANGEROUS legal strategy, for the simple reason that you are thrust into the “fight” option where you are forced to either spend tens of thousands of dollars to some defense attorney to litigate the case for you, or you have committed yourself to become a legal expert unrepresented “pro se” defendant.

If you have any intention of keeping your identity private, it is best to have your attorney negotiate the release of your “John Doe” placeholder entity WHILE YOU ARE STILL A JOHN DOE.  As soon as you are named and served, your identity as being involved in a copyright infringement lawsuit will become public, even if your attorney convinces the other side that you are not the downloader.  And, even if you ended up paying a settlement amount in lieu of litigating the claims against you, if you do so after you are named and served, your identity will become public knowledge and ‘there is no way to put that genie back in the bottle once it’s out.’

Point in sum. It is *almost ALWAYS* better to have your attorney proactively contact the plaintiff attorney before you are named and served.  That way, if a release based on non-guilt is negotiated, it will be done anonymously.  If a settlement is reached, then it will be done without the world learning that you were part of a copyright infringement lawsuit.

WHO IS THE ATTORNEY SUING ME?

TEXAS CASES: Gary Fischman (Fischman Law PLLC)

NOTE: Gary Fischman is the same attorney who is suing defendants in the I.T. Productions LLC cases, the September Productions cases, Cell Film Holdings cases, and Fathers & Daughters Nevada cases.  He is often seen filing lawsuits in conjunction with Josh Wyde.

(I will obviously update this for other states.  For the moment, I have been representing clients in the Texas Southern District Court (TXSD) because our Cashman Law Firm, PLLC practice is physically located in Houston, Texas.)

SUMMARY: ME2 SUBPOENAS DUE TODAY.

I could go on forever with these questions and answers, but the point is that your plaintiff attorney will likely be getting your contact information today for a number of the ME2 Productions, Inc. lawsuits in various states, and the reason for this is because your ISP (primarily, Comcast) is coordinating the compliance with the subpoena by bunching the various subpoenas together and handling them all at the same time.

Thus, expect that tomorrow, your respective ‘copyright troll’ plaintiff attorney will begin calling you, and from there, the process continues as I described above.


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.

RECENT CASE HISTORY OF THE ME2 PRODUCTIONS, INC. CASES:

Cases filed in the Texas Southern District Court [2017 cases]:
Attorney: Gary Fischman (Fischman Law PLLC)

ME2 Productions, Inc. v. DOES (Case No. 4:17-cv-00501)
Filed: Feb 15, 2017, Judge: TBA

ME2 Productions, Inc. v. Does 1-12 (Case No. 4:17-cv-00404)
Filed: Feb 09, 2017, Judge: TBA

ME2 Productions, Inc. v. DOES (Case No. 4:17-cv-00275)
Filed: Jan 27, 2017, Judge: TBA

ME2 Productions, Inc. v. Does (Case No. 4:17-cv-00143)
Filed: Jan 17, 2017, Judge: TBA

Cases filed in the Nevada District Court:
Judges include Judge Andrew Gordon, Judge James Mahan, Judge Jennifer Dorsey, and Judge Richard Boulware II — Judge Mahan and Judge Gordon have most of the cases:

ME2 Productions, Inc. v. Does (Case No. 2:16-cv-02783)
The following cases also filed as ME2 Productions, Inc. v. Does:
Case No. 2:17-cv-00114
Case No. 2:16-cv-02563
Case No. 2:16-cv-02513
Case No. 2:16-cv-02799
Case No. 2:17-cv-00121
Case No. 2:17-cv-00126
Case No. 2:17-cv-00122
Case No. 2:16-cv-02657
Case No. 2:16-cv-02384
Case No. 2:16-cv-02520
Case No. 2:17-cv-00124
Case No. 2:17-cv-00123
Case No. 2:16-cv-02662
Case No. 2:16-cv-02788
Case No. 2:16-cv-02875
Case No. 2:16-cv-02660
Case No. 2:17-cv-00049

Cases filed in the North Carolina Eastern District Court:
Judges include Judge Louise Wood Flanagan, Judge Terrence Boyle, Judge W. Earl Britt — Judge Flanagan is the lead, as she has most of the cases and is in charge of the 5:16-cv-914 case into which the others have been consolidated, so watch her rulings to understand how ‘bittorrent’ law is about to evolve in North Carolina:

ME2 Productions, Inc. v. Doe 1, et al (Case No. 5:16-cv-00881)
ME2 Productions, Inc. v. Doe 1, et al (Case No. 5:16-cv-00885)
ME2 Productions, Inc. v. Doe 1, et al (Case No. 4:16-cv-00273)
ME2 Productions, Inc. v. Doe 1, et al (Case No. 5:16-cv-00896)
ME2 Productions, Inc. v. Does 1-8 (Case No. 5:16-cv-00914)
ME2 Productions, Inc. v. Does 1-9 (Case No. 7:16-cv-00385)
ME2 Productions, Inc. v. DOES 1-10 (Case No. 7:16-cv-00386)
ME2 Productions, Inc. v. Does 1-8 (Case No. 7:16-cv-00384, CONSOLIDATED into 5:16-cv-00914-FL)
ME2 Productions, Inc. v. Does 1-16 (Case No. 7:16-cv-00394)
ME2 Productions, Inc. v. Does 1-16 (Case No. 4:16-cv-00279)
ME2 Productions, Inc. v. Does 1-9 (Case No. 5:16-cv-00875)
ME2 Productions, Inc. v. Doe (Case No. 7:16-cv-00383)
ME2 Productions, Inc. v. Does 1-13 (Case No. 4:16-cv-00278)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 5:16-cv-00917)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 5:16-cv-00920)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 5:16-cv-00922)
ME2 Productions, Inc. v. Does (Case No. 5:16-cv-00202)
ME2 Productions, Inc. v. Does (Case No. 5:16-cv-00206)

Cases filed in the Colorado District Court:
Judge Wiley Y. Daniel has ALL of the bittorrent cases. Watch his ruling because the ME2 cases might affect Colorado ‘bittorrent’ law.

ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:17-cv-00170)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:16-cv-02978)
ME2 Productions, Inc. v. John Does 1-20 (Case No. 1:16-cv-03005)
ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:16-cv-03069)
ME2 Productions, Inc. v. John Does 1-24 (Case No. 1:16-cv-03128)
ME2 Productions, Inc. . v. Doe 1 et al (Case No. 1:17-cv-00301)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:17-cv-00387)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:17-cv-00033)
ME2 Productions, Inc v. John Does 1 – 11 (Case No. 1:16-cv-02770)
ME2 Productions, Inc v. John Does 1-21 (Case No. 1:16-cv-02788)
ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:16-cv-02827)
ME2 Productions, Inc v. John Does 1-10 (Case No. 1:16-cv-02891)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:16-cv-02580)
ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:16-cv-02629)

Cases filed in the Washington Western District Court:
Judge Robert Lasnik appears to be in control of all of the bittorrent cases thus far (a number of them are still ‘TBA’, but I suspect they will go to Judge Lasnik). Watch his ruling on any of these cases, because a ruling on one of these cases will likely affect ALL of the other bittorrent cases in the Washington Western District Court.

ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01882)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01881)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01953)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01955)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01950)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01776)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01778)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00181)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00182)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00099)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00100)

Cases filed in the Indiana Northern and Southern District Courts:
These cases appear to be assigned to judges in a rotating fashion, and thus, while Judge Theresa Springman (in the Indiana Northern District) and Judge Larry Mckinney (in the Indiana Southern District) each appear to have three (3) cases each, there appears to be no leadership by either judge as to directing the Indiana court as to how or whether these cases will affect ‘bittorrent’ law.

ME2 Productions, Inc. v. Does 1-8 (Case No. 1:16-cv-00390)
ME2 Productions, Inc. v. Does 1-9 (Case No. 3:16-cv-00764)
ME2 Productions, Inc. v. Does 1-10 (Case No. 3:16-cv-00695)
ME2 Productions, Inc. v. Does 1-9 (Case No. 2:16-cv-00468)
ME2 Productions, Inc. v. Does 1-12 (Case No. 2:16-cv-00478)
ME2 Productions, Inc. v. Does 1-11 (Case No. 3:16-cv-00697)
ME2 PRODUCTIONS, INC. v. DOE 1 et al (Case No. 1:16-cv-03020)
ME2 PRODUCTIONS, INC. v. DOE 1 et al (Case No. 1:16-cv-02757)
ME2 PRODUCTIONS, INC. v. DOE 1 et al (Case No. 1:16-cv-02758)

Cases filed in the Arizona District Court:
These cases also appear to be assigned to judges in a rotating fashion, however, it is appearing that Judge Diane Humetewa is taking on more bittorrent cases than any of the others. So watch her court for leadership moving forward.

ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00210)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04039)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04075)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04114)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04112)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04123)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00216)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00217)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00218)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00222)

Cases filed in the New York Eastern and Southern District Courts:
NOTE: Single “John Doe” cases are being filed here. Warning!

ME2 Productions, Inc. v. Doe – 24.44.105.211 et al (Case No. 1:16-cv-06161)
ME2 Productions, Inc. v. Doe – 68.194.38.87 et al (Case No. 1:16-cv-06160)
ME2 Productions, Inc. v. Doe(s) – (Case No. 1:17-cv-00929)
ME2 Productions, Inc. v. Doe – 74.71.172.215 et al (Case No. 1:17-cv-01049)

Cases filed in the Oregon District Court:
Again, warning! These are single-doe cases.

ME2 Productions, Inc. v. Doe-76.27.219.56 (Case No. 3:16-cv-01724)
ME2 Productions, Inc. v. Doe-73.164.239.74 (Case No. 3:16-cv-01725)
ME2 Productions, Inc. v. Doe-24.21.195.166 (Case No. 3:17-cv-00158)

OTHER CASES (WITHOUT COMMENT):

Cases Filed in the Connecticut District Court:
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01834)
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01835)
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01837)
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01838)

Cases Filed in the Georgia Northern District Court:
ME2 Productions, Inc. v. Does 1-13 (Case No. 1:16-cv-03904)
ME2 Productions, Inc. v. Does 1-12 (Case No. 1:16-cv-04054)
ME2 Productions, Inc. v. DOES 1-11 (Case No. 1:16-cv-04208)
ME2 Productions, Inc. v. DOES 1-11 (Case No. 1:16-cv-04052)
ME2 Productions, Inc. v. DOES 1-11 (Case No. 1:16-cv-04210)
ME2 Productions, Inc. v. Does 1-9 (Case No. 1:16-cv-04207)
ME2 Productions, Inc. v. Doe 1 (Case No. 1:16-cv-04055)

Cases filed in the Illinois Northern District Court:
(Think, John Steele / Prenda Law Inc. / Steele|Hansmeier / #Prenda old territory.)
ME2 PRODUCTIONS, INC. v. DOES 1-25 (Case No. 1:17-cv-00712)
ME2 PRODUCTIONS, INC. v. DOES 1-25 (Case No. 1:17-cv-00706)
ME2 PRODUCTIONS, INC. v. DOES 1-25 (Case No. 1:17-cv-00708)
ME2 PRODUCTIONS, INC. v. DOES 1-42 (Case No. 1:17-cv-00714)
ME2 PRODUCTIONS, INC. v. DOES 1-26 (Case No. 1:17-cv-00710)

Case(s) filed in the Kentucky Western District Court:
ME2 Productions, Inc. v. Does 1-10 (Case No. 3:16-cv-00702)

Case(s) filed in the Maryland District Court:
ME2 Productions, Inc. v. Doe 1 et al (Case No. 8:16-cv-03730)

Case(s) filed in the Missouri Western District Court:
ME2 Productions, Inc. v. Doe 1 et al (Case No. 4:16-cv-01271)

Case(s) filed in the Ohio Northern and Southern District Courts:
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-02715) — Northern
ME2 PRODUCTIONS, INC. v. DOES 1-14 (Case No. 2:16-cv-01062) — Southern

Cases filed in the Pennsylvania Eastern District Court:
(This is Jordan Rushie territory.)

ME2 PRODUCTIONS, INC. v. JOHN DOES 1-8 (Case No. 2:16-cv-06138)
ME2 PRODUCTIONS, INC. v. JOHN DOES 1-13 (Case No. 2:17-cv-00572)

Cases filed in the Virginia Eastern and Western District Courts:
ME2 Productions, Inc. v. Doe 1 (Case No. 3:17-cv-00058)
ME2 Productions, Inc. v. DOE 1 (Case No. 3:17-cv-00057)
ME2 Productions, Inc. v. Does 1-13 (Case No. 5:16-cv-00083)
ME2 Productions, Inc. v. Does 1-11 (Case No. 3:17-cv-00002)


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.