Any “copyright troll” bittorrent-based copyright infringement lawsuit really revolves around the subpoena which moves from the court to the accused John Doe Defendants. Tracking a subpoena can help an accused defendant understand the timelines of when they can fight, when they can settle, when they can ignore, and whether they are anonymous or not at each step.
A Subpoena is first introduced to the court for approval.
A subpoena is first introduced to the court when the plaintiff attorney files the lawsuit and asks the court for permission to obtain the identities of the various internet users accused of downloading the copyright holder’s movie or copyrighted work.
The Subpoena, once approved by the court, is sent to the ISP.
The federal judge approves the subpoena (usually by rubber stamp), and the subpoenas are then sent to the “abuse” department of the various ISPs (e.g., AT&T U-verse, COX Communications, Comcast, etc.). These ISPs in receipt of the subpoena are ordered to hand over the accused subscriber’s information to the plaintiff attorney. They send a notice to the account holder that a subpoena has been received, and that they are under a duty to comply with the subpoena by a certain date unless the account holder files a Motion to Quash the subpoena before the arbitrary deadline they set (usually the deadline is 30 days from the notice sent to the subscriber).
The ISP forwards the Subpoena to the accused account holder giving him a chance to file an objection with the court.
You (the account holder) receive the notice containing the subpoena, and you learn that you are implicated as a “John Doe” (an unnamed defendant) in the Copyright Holder Corporate Entity v. Does lawsuit. Here, you learn that you can supposedly stop the ISP from handing out your information to the plaintiff attorney by filing an objection with the court, a.k.a. a “Motion to Quash.” At this point, you are still anonymous.
The ISP complies with the Subpoena and hands over your contact information to the plaintiff attorney.
Assuming you do not file the Motion to Quash (there are many articles on this website explaining why you might not do so), the 30-day deadline set by your ISP will lapse, and your ISP will comply with the subpoena. They turn over your information to the PLAINTIFF ATTORNEY (but not to the court or anyone else). You are still anonymous.
At this point, the life of the subpoena is over, as it has served its purpose and the plaintiff attorney is in receipt of your contact information (and whatever other information your ISP was forced to hand over to it). At this point, you are a “John Doe” defendant in the lawsuit, and only your plaintiff attorney knows your real identity. YOU ARE STILL ANONYMOUS at this point (as to the court and the world, as the plaintiff attorney is not going to share your information unless he decides to name and serve you as a defendant in the lawsuit).
Your anonymity expires once the plaintiff attorney realizes that he or she cannot get a settlement from you, and based on their evidence that you are the downloader of their client’s copyrighted movie, they file an amended complaint with the court with your name as a defendant, and they serve you with a copy of the complaint. At this point, you have been “named and served,” and you are no longer anonymous. At this point, you need to decide whether it makes more sense to stand and defend against the claims against you (consider the attorney fees issue), or to negotiate a settlement and amicably step away from the lawsuit.
Asking for $750 Minimum Statutory Damages is not as scary as you might think.
Minimum statutory damages for copyright infringement is $750. Copyright trolls and their attorneys scare accused downloaders with the $150,000 number in EVERY SINGLE SETTLEMENT DEMAND LETTER. But baked into the copyright laws is that ‘minimum statutory damages’ number, which is $750.
If you think about it, if you are caught drunk driving (a dangerous act where you can kill people), in Texas, you can be fined a few hundred to two thousand dollars and spend between three and 180 days in jail. If you steal something or are caught shoplifting (or you are caught purchasing or accepting stolen property), in Texas you can be charged with larceny and would have to pay a fee as low as $50 or as high as a few thousand dollars depending on the cost of the goods stolen.
When you “steal” copyrighted content by downloading it via bittorrent or streaming it via some ‘tube’ website or using software such as Kodi, you are depriving the copyright holder of the cost of the movie ticket (~$12) for the movie you did not see in the theater, or the cost of the DVD (~$30) that you did not purchase on Amazon.com because instead you pirated the film. These are what are called “ACTUAL DAMAGES“.
STATUTORY DAMAGES are something else. The law says that the copyright holder does not need to prove actual damages, and can rely on damages that the law thinks he is entitled to under the copyright laws. Baked into statutory damages is the concept of “minimum damages” which easily includes the theft of a video or a movie via a bittorrent download.
So when a plaintiff attorney / copyright troll scares you with that $150,000 number, understand that if you simply hung up the phone with that copyright troll and hired our firm to ‘file an answer with the court admitting guilt and arguing for minimum statutory damages’, there is a strong case for your judge to award minimum statutory damages to the plaintiff attorney.
What an “Argue Minimum Statutory Damages” strategy would cost.
But what exactly would the minimum statutory damages look like? Obviously, add $750 for the minimum statutory damages itself.
+$750 minimum statutory damages
Then, copyright laws give the ‘winner’ of the lawsuit the right to collect their attorney fees from the ‘losing’ side. Since we would quickly and actively file an answer on your behalf admitting guilt, the plaintiff attorney would not have had any out of pocket costs except the $400 filing fee (which in most cases is split between 10-15 defendants), so add another $40.
+$40 filing fees and costs split among the ten ‘John Doe” defendants
Then, the plaintiff attorney spent “a few hours” filing the boilerplate complaint (he has done this probably 100+ times already, so it didn’t take him a long time to file your lawsuit) and providing the court the documents he has already done many times already. Thus, estimate another $750-$1500 for the attorney fees to the ‘prevailing party’ (the ‘winner’).
+$1,500 attorney fees to the prevailing party (assuming that much time was even spent on the case).
———————————————————– Then add everything up. ———————————————————–
+ $750 minimum statutory damages + $40 filing fees split among defendants + $1,500 attorney fees (if even that much) ———————————————————– Total Estimated Cost: $2,290 for having your attorney ‘plead guilty’ on your behalf.
What about the fee to your own lawyer? Here is what you pay for:
STEPS YOUR ATTORNEY WOULD TAKE TO ARGUE “MINIMUM STATUTORY DAMAGES”:
Here are the steps we would take on your behalf in order to implement the minimum statutory damages strategy.
1) We send a letter to your plaintiff attorney and file a notice of representation with the court. 2) We open up discussions with the plaintiff attorney. Discuss evidence. If relevant, discuss settlement. 3) If the attorney is being unreasonable in the settlement negotiations, we cut off settlement negotiations and file an answer with the court admitting guilt. In our answer, we make argument for minimum damages.
Who would benefit from an “argue minimum statutory damages” strategy?
Now obviously the “argue minimum statutory damages” strategy is best used with an accused downloader who has actually done the download and does not wish to defend against a copyright infringement lawsuit (e.g., he does not have a ‘clean’ hard drive, and/or the infringing file is still on his hard drive). This strategy is also best used in the situation where the plaintiff attorney / copyright troll is being greedy, unreasonable, or abusive in the settlement negotiations. There is no need to argue with an uncooperative copyright troll if you can get a comparable result by simply admitting guilt and arguing for minimum statutory damages.
Is this an effective strategy even if you did not do the download?
NO. 1) There is no reason to settle if you did not do the download. 2) This strategy involves admitting guilt. The purpose of this strategy is simply to take the settlement negotiations out of the hands of the plaintiff attorney / copyright troll.
If you did NOT do the download, there are other less expensive strategies, such as the “no settlement” representation strategy or the “ignore” route. Alternatively, your attorney can file a motion to dismiss and dispense of the lawsuit quickly based on the inherent weaknesses of the case.
Why would someone guilty of copyright infringement use the “argue minimum statutory damages” strategy?
Plaintiff attorneys / copyright trolls seem to have their own calculus as to who they ‘let off’ and who they ‘nail’ in a settlement negotiation. In other words, if they like you (or your Cashman Law Firm, PLLC attorney has leverage over them), they’ll give you a good settlement deal. If they don’t like you, or if you fit into a category which copyright trolls believe that you have a vulnerability exposed, they can and often *WILL* take advantage of you (e.g., if you are elderly, or if you are a war veteran, or if they believe you can pay a higher settlement, etc.).
The strategy of having your attorney argue for minimum statutory damages is a good way to take the power away from the copyright troll. If the plaintiff attorney is taking advantage of your situation, you can take the settlement negotiations away from him. In essence, it is forcing the copyright troll to accept a lower settlement amount than he would have proposed in a settlement negotiation.
To embarrass a troll.
Arguing for minimum statutory damages is the reason someone who did the bittorrent download would employ this strategy. However, there is the additional nudge or motivation in doing this strategy — to expose the tactics of the copyright troll. If a plaintiff attorney is using abusive tactics, or he is hiding his tactics behind a “FRE 408” header on his e-mail, you can use this strategy to expose his conduct to the judge.
Under the Federal Rules of Evidence (FRE 408), settlement negotiations are not admissible in court, unless they are brought into evidence to show bias, prejudice, or some other valid reason (e.g., abusive conduct or harassment in the context of settlement negotiations). There is a lot of latitude for an attorney who is filing an answer admitting guilt and asking the court to grant him his wishes to quickly and efficiently terminate the proceedings. Within this latitude is the ability for the attorney to share with the judge the contents of the settlement negotiations prior to filing the answer in order to help the judge understand that the plaintiff attorney was employing abusive settlement tactics in order to resolve his $12 lost movie ticket / $30 lost DVD sale claim.
Would our firm also argue the other inherent weaknesses of the plaintiff’s case in an “argue minimum statutory damages” strategy?
Obviously there *are* inherent weaknesses in the copyright troll’s case which can be addressed in a more comprehensive defense strategy (e.g., by filing a motion to dismiss with the court) and then if that fails, filing an answer admitting guilt and arguing for statutory damages. However, this is not the purpose of this strategy. (As to the motion to dismiss because of the other issues inherent to the case, e.g., improper joinder, no evidence, improper pleadings, etc., I will be writing about these weaknesses in coming articles.)
IN SUMMARY, CONSIDER ARGUING FOR MINIMUM STATUTORY DAMAGES (IF YOUR TROLL IS MISBEHAVING).
If your copyright troll is being unreasonable in settlement negotiations, consider having your attorney (us, or whoever you use) file an answer with the court admitting guilt and argue for minimum statutory damages. Even if you were caught doing the download, you don’t need to give in to a ransom settlement. Copyright law has already anticipated your infringement, and there is a strong likelihood that a judge (especially one who sees many ‘copyright troll’ lawsuits from this same plaintiff) knows the scam these copyright holders are running, and they will be sympathetic to a defendant who employs this strategy. Why? This is a quick resolution to a copyright troll who is taking advantage of a downloader and asking for more than he should, and judges love ‘judicial economy’.
Obviously if you have any questions about what I have written here, please feel free to SPEAK TO ME and ask me questions about your case. There are many ways to take care of the claims against you without giving in to the settlement demands of the plaintiff copyright troll. Also, each defendant has different circumstances, so this article (or more generally, ANYTHING I write in this blog) is not meant to be legal advice or magical pills for you to get out of this lawsuit scott free. Trust that I have spent literally SEVEN YEARS fighting copyright trolls, and so there are many ways to approach your case. Admitting guilt and making the argument for minimum statutory damages is simply one more tool we have at our disposal to handle a plaintiff attorney who is not ‘playing nice.’
Tweaking an old strategy for a more effective one.
For those of you who speak to me on Twitter, I am working on implementing a new strategy based on Matthew Sag’s “Defense Against The Dark Arts of Copyright Trolling” paper. Most relevant to this is finding representation for John Doe Defendants who did not do the download and who rightfully do not want to pay settle the claims against them.
Our Cashman Law Firm, PLLC for years has represented clients in what we called “ignore” route representation, where we would not settle the claims against the John Doe clients (unlike settlement factories who did). While the “ignore” route representation strategy was very effective for many years, in recent years where plaintiff attorneys name and serve defendants, it has lost some of its effectiveness.
The need for a low-cost strategy to represent innocent defendants.
Come Matthew Sag’s “Defense Against The Dark Arts of Copyright Trolling” paper, where he suggests that attorney provide a low cost service to innocent defendants to “call the copyright troll’s bluff,” so to speak. Our Cashman Law Firm, PLLC is working on how to implement the strategy, and we are looking to focus it on those who did not do the download.
THE PROPOSED “NO SETTLEMENT” REPRESENTATION STRATEGY
A strategy is only as good as those who implement the strategy. While we may develop the strategy further, we ask for your support in publicizing the existence of this strategy. We also ask for support from other attorneys to provide their clients a strategy such as this one.
Should you find in our community of attorneys an attorney who is taking clients at a low cost and sending the ‘innocence’ letters as we propose in this strategy, but clients taken are not innocent, this could ruin the credibility of the strategy. Similarly, we ask attorneys to adhere to the ‘no settlement’ stance, and not to give in to ‘nuisance’ settlement payments. Although a nuisance settlement can be a few hundred or a few thousand dollars here or there, this is exactly what will perpetuate the copyright troll scheme, and will keep the copyright trolls in business and thriving.
The best time to hire an attorney in a “John Doe” copyright infringement lawsuit is when you receive a subpoena notice from your ISP.
Even if you are not planning on filing a motion to quash, this is a copyright infringement case, and you need time to prepare for what will happen should you be named and served.
Hiring an attorney while you are still a “John Doe” gives you plenty of thinking time to get your affairs in order (for example, managing your online reputation by adjusting privacy settings on your social networking sites), and it gives you time to get your financial affairs in order.
DO NOT WAIT TO HIRE AN ATTORNEY UNTIL AFTER THE ISP HANDS OVER YOUR INFORMATION TO YOUR PLAINTIFF ATTORNEY.
There are a lot of things that you can accomplish before your ISP hands out your information. You are anonymous at this point, and you can take advantage of that anonymity.
If you want to negotiate a truly anonymous settlement, when you receive your subpoena notice from your ISP is the time to do it. The plaintiff attorney has done almost no research on your John Doe entity, and thus the settlement amounts will be low because there are no legal fees the attorney will want to add to the settlement amount to be paid for time spent trying to proceed against you.
Also, if your attorney is successful in negotiating an anonymous settlement (this may or may not be a good idea; talk to me and I’ll explain why), the benefit of doing it now when nobody knows who you are is that your plaintiff attorney will cancel the subpoena as to your John Doe entity once the settlement is complete. That way, even he won’t ever know who you are (and thus you won’t have to worry about follow-up lawsuits, or the ‘copyright troll’ attorney asking you for more money later on, etc.).
ABSOLUTELY DO NOT WAIT UNTIL YOU ARE NAMED AND SERVED AS A DEFENDANT IN THE LAWSUIT.
Once you are named as a defendant in the lawsuit, your “John Doe” status is over, as is your anonymity. Not only will the court know who you are, but at this point, the INTERNET will know who you are. Forever, spiders and crawlers who search and index the legal sites and the lawsuit sites will index your name as being implicated as a defendant in that particular lawsuit.
Even if you settle the case, your reputation will be forever tarnished.
Even if you fight the case AND WIN, your reputation will forever be tarnished.
Once you are named and served, you have a ticking time bomb deadline waiting around the corner, where you will be forced to file an “Answer” with the court, or else you will be in DEFAULT.
Trying to negotiate a settlement after being named and served is like trying to negotiate with a gun to your head. It is doable (and we have done it many times), but there is NO LEVERAGE. The plaintiff attorney at this point is emboldened because there is nothing that he needs to do except wait. He is under no pressure to negotiate at this point, because the law gives his client statutory damages if the infringement is willful. Even if his client does not get the $150,000 statutory damages jackpot, if the named defendant defaults and the court awards minimum damages ($750), because the plaintiff attorney is the prevailing party, he will be awarded his attorney fees (which in most cases will be over $2,000 — higher than the commission he would have received had he accepted a settlement from you).
THUS, THERE IS A FINANCIAL INCENTIVE FOR THE PLAINTIFF ATTORNEY *NOT* TO SETTLE AFTER NAMING AND SERVING A DEFENDANT
Lastly, if you hire an attorney after you are named and served, practically, the attorney will be under pressure to get everything in order and filed before the deadline. Please do not do this to your attorney.
We do not do this, but most attorneys will charge a premium or a higher hourly rate if there is a “days to a default” deadline associated with the work to be done. The reason for this is that the attorney will need to drop whatever he is already working on and throw your case to the front of the pile (usually at the cost of accepting other business).
If you hired an inexperienced attorney after being named and served, the work you will get in return for the money you paid will be lower quality, because the attorney will not have the time to research the best legal strategies, arguments, or defenses available to your case, and in copyright infringement lawsuits, your defenses need to be raised in your answer or else you waive them.
For these reasons, for your own sanity, for your lawyer’s sanity, and for your own benefit — please DO NOT wait until you are named and served before hiring an attorney. Do it immediately when you learn about the lawsuit from your ISP.
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.
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