Category Archives: Issues

WHY COPYRIGHT TROLL NON-PRACTICING ENTITIES SHOULD NOT BENEFIT FROM COPYRIGHT LAWS.

Who is the “Real Party in Interest” in the Strike Three Holdings movie lawsuits?

Last night, I set out to explain the differences between the recent Strike Three Holdings ISP subpoena lawsuits and the Malibu Media lawsuits, but the similarities ended up haunting me.  Seeing yet again the makings of another copyright holder who is playing what is starting to look like a “corporate shell game,” I am again weighed down in wondering whether Strike 3 Holdings movie lawsuits (think, “Tushy.com [NSFW],” “Blacked.com [NSFW],” and “Vixen.com [NSFW]”) is really the old wolf — Malibu Media LLC — in sheep’s clothing.

What bothers me about each of these movie (or here, “adult film”) cases is the slick non-transparency between who the copyright holder is, who is actually the party filing the lawsuit (legally, the “real party in interest,”) and who the interested parties are in the lawsuit.

Attorney “Kidneys”

From a lawyer’s perspective (my own attorney “kidneys”), it really bothers me that lawyers LIE to judges and courts now when they file lawsuits.  Maybe this has always been the case, and what do I know — I’ve only been a lawyer active in my field for ten years now — but law school took SO MANY STEPS to teach us to be moral and ethical.

In order to be eligible to take the New York bar exam, we not only had to pass a [frankly, invasive] character and fitness review, but we needed to pass an ethics exam (the MPRE).  In that ethics exam, almost every answer to the exam was, “be ethical, turn that lawyer in to the authorities.”  This is what caused me to delve quite early into the legal malpractice field.

Our Legal System is BROKEN by attorneys who represent unethical clients.

But our legal system breaks when a small few attorneys allow their clients to engage in deception, distortion, and outright lies, as I suspect is already happening with the Strike 3 Holdings lawsuits. 

Looking at the selection of each of the new lawyers that have been chosen to file cases, I can already see the outcome and how each of the cases will play out based on that particular lawyer’s proclivities and skillset.

Some of these lawyers are “new guys,” or “fresh meat” (as I jokingly call them) — not because I can take advantage of their ignorance of the law (or at least the ignorance of how copyright law is applied differently in each of the federal courts across the US), but because I know that they are local counsel to a centralized (and likely criminal) enterprise.

Thus, they will act as “empty shells” who follow the dictates of their client masters…  as we have seen before, possibly at the peril of their own law licenses.

SIDE NOTE: Kudos to those local counsel who chose the ethical path, eventually.

Unrelated but relevant, I must note that a number of former “copyright troll” attorneys who have been local counsel to other attorneys are no longer “in the game,” so to speak.  They no longer file copyright infringement lawsuits for their masters, and they stood up and said “no” when their copyright troll clients asked them to take part in activities that would have cost them their law licenses.  I do take pride in commending these attorneys in taking a stand against their morally corrupt clients, and in a few cases, I know personally of a few attorneys who backed out of being local counsel and who likely saved their law licenses as a result.

Because many of these local counsel at one point were “fresh meat,” they took the copyright monetization (NPE) client [I’ll describe the “NPE” term later] thinking that this would bring in needed revenue to their law firm.  They thought they would learn a lot, and they rationalized that they were on the “right side of the law.”  This continued until they realized that they were representing a corrupted client, and then they were in too deep to drop them as a client.

Eventually, the copyright monetization (NPE) client turned on them (think, “honor among thieves,“)  and told them to do something unethical.  Risking loss of what became their entire law firm’s focus, they were forced to continue on their path hoping that they would never be caught by the state bar.  Eventually, in one particular case, their client stopped paying them their own commissions and they were left working for a client who was cheating them.

I have spoken attorneys such as these on a number of occasions (many of these attorneys are the subject of past articles), and I hope to have contributed to their decision to leave their masters as a battered wife would leave her husband.

I am also happy to share that I have been screamed at by a number of attorneys who direct lawsuits (most notably, John Steele of Prenda Law Inc., now disbarred, and who is pictured at the top of this article) “for speaking to and advising his local counsel” as to their rights when their own client (Steele) put them in a precarious position.

In sum (and this was supposed to be a side note), not all local counsel are bad people.  However, at the moment while they are still suing defendants, they know I believe they are on the wrong side of the law, and here is why.

Why the law requires the ENFORCEMENT OF TRANSPARENCY in copyright infringement / bittorrent-based lawsuits.

The point of this article is that the law requires transparency and disclosure when filing lawsuits, and judges tend to rely on the filings of the plaintiff attorneys (in an honest world, those representing the copyright holder).  However, when copyright monetization entities (e.g., RightsEnforcement, etc.) step as a buffer entity in between the copyright holder and the defendant, this creates a disparity in favor of the local “empty shell” attorney filing identical documents (serially, or over-and-over) on behalf of his “boss” (the attorney who is running the copyright troll lawsuit campaigns for each of his copyright holder clients). As a result, the individual accused John Doe Defendant is harmed by this disparity by being thrown into trying to defend against an elaborate copyright enforcement scheme which could ultimately cost him his entire life savings.

DISCLOSURE can lead to an equal playing field.

I feel strongly that a copyright monetization company should openly and honestly disclose exactly who they are, what benefit the actual copyright holder is getting from the lawsuit, and who else has an interest in the outcome of the litigation.  At least then, the judge could understand who else this monetization company is representing, and he could “tame” them and their tactics so that the accused downloaders (the “victims” of what will end up being a settlement extortion scheme) will at least have an equal playing field in order to defend themselves and the claims against them.

I don’t wear the pope hat.

And while writing this, I don’t want you to think that I am wearing the pope hat.  I started my law career on the wrong side of the law.  As a brand new attorney, I worked for an entity who ended up representing “Intellectual Ventures,” a prolific patent troll.  I observed the shell companies they used and the games they played to purchase patents (or at least the rights to enforce them), only to turn from a harmless company to a patent troll with sharp teeth.

Needless to say, Intellectual Ventures turned “evil” (so to speak), and started enforcing their patents to “force” (I want to use the word extort) companies almost-remotely-maybe-infringing that patent into accepting a license so that Intellectual Ventures could take a mafia-share royalty off of each of that company’s profits.  So long as Intellectual Ventures (under their RPX Corp entity) received “tribute payments” in the form of a “membership fee” for entrance into their patent troll organization, they would not be sued by the patent holder (or the “NPE” patent troll conglomerate organization who held the patents).

In short, I learned how to defend against copyright trolls by working on behalf a powerful patent troll [and if you want to read the articles I wrote on that topic and the RPX Corp (what Intellectual Ventures became), please feel free to visit my articles from 2008 on the topic].  I wasn’t very active at the time in blogging, but the articles are still interesting to read.

Why NON-PRACTICING ENTITY (NPE) STATUS should be applied to copyright trolls.

What is relevant to my experiences with Intellectual Ventures (and later, RPX Corp) was the concept of a “Non-Practicing Entity,” or an “NPE.”  In patent litigation, a non-practicing entity is a corporate entity who enforces patents which it did not create.  Shortly after patent trolls and NPEs made a killing in the federal courts, the rules changed to make these kinds of lawsuits unprofitable.

I believe that the same “Non-Practicing Entity (NPE)” status should be applied in the federal courts to copyright holders as well.

AND HERE IS WHY.

My point:  The copyright law gives copyright holders rights to enforce their copyrights.  The purpose of these rights are to benefit the copyright holders (to reward their creativity, their ingenuity, and their contribution to the arts).  When a slime and base organization comes in and purchases those copyright rights to benefit financially from the rights due the copyright holders, the law should not allow those entities to benefit as if they are the copyright holders.

WHY COPYRIGHT TROLL NON-PRACTICING ENTITIES SHOULD NOT BENEFIT FROM COPYRIGHT LAWS.

Copyright Troll NPEs never contributed anything to the arts.  They do not benefit society.  They do not benefit the copyright holders (who are often cheated by them or only receive a small piece of what could be theirs under the copyright laws).  They do not benefit the actors, writers, or artists who created the copyrighted work.  Rather, NPEs make their attorneys wealthy and they target and destroy the lives and the savings of thousands of households each year, separating the working class from their hard earned savings.

So I ask you — should NON-PRACTICING ENTITY (NPE) STATUS be applied to bittorrent-based copyright infringement lawsuits who are deceptively managed by these NON-PRACTICING ENTITY (NPE) conglomerates who only serves to monetize the copyrights of others for their own benefit?

IP Echelon “HBO Game of Thrones” DMCA notices are not lawsuits.

I received a phone call today asking me to write about the Game of Thrones HBO piracy lawsuits, but there are none.

Last year, HBO sent thousands of DMCA copyright infringement notices to internet users who were caught downloading or viewing the Game of Thrones episodes without an HBO subscription. As reported by Ernesto @Torrentfreak.com, HBO teamed up with IP-Echelon (an anti-piracy company), which was tasked with sending DMCA warning notices. [I referred to them as *WARNING* notices intentionally; you’ll see why soon.] These warning notices told accused internet users to remove any downloaded Game of Thrones episodes downloaded using bittorrent, and even instructed them ‘with a bit of wit’ to get a HBO subscription.

I received many phone calls from internet users who received these IP Echelon notices. However, unlike the DMCA settlement demand notices that accused internet users receive when they are caught downloading music (Chris Sabec from Rightscorp, a.k.a. Digital Rights Corp. sends these) or movies (Carl Crowell from Rights Enforcement sends these), the IP Echelon DMCA warning letters do not ask for money. They are merely, “Hey you, cut it out! Stop pirating my client’s TV episodes, delete what you did, and get a subscription” notices.

Obviously these notices should not be ignored. Home Box Office, Inc. (“HBO”) would be a formidable opponent if they started suing accused defendants in federal courts for copyright infringement. They have deep pockets, they have unlimited resources, and they likely have name brand recognition and respect from every federal judge in every federal court.

My opinion about IP Echelon and the HBO Game of Thrones DMCA notices.

Believe it or not, I believe HBO is going about this the right way. Instead of suing individual downloaders who are caught viewing or downloading the various Game of Thrones episodes, HBO and IP Echelon are focusing their efforts on REDUCING THE AVAILABILITY OF THE UNLICENSED VIDEOS. This means that they are taking steps to remove bittorrent trackers so that when someone clicks on a bittorrent file, the bittorrent tracker is dead (meaning, no bittorrent swarm and thus no infringement).

IP Echelon is also sending copyright infringement notices using the Digital Millennium Copyright Act (these are the “DMCA” notices) which they are having the various ISPs forward to subscribers who are “caught” downloading the Game of Thrones episodes.

“Caught,” but not punished.  

By doing this, HBO successfully reduced the piracy of their Game of Thrones episodes, and they kept their fans loyal.

In sum, they are 1) monitoring and policing the availability of their content on piracy peer-to-peer networks, and 2) they are contacting individual downloaders warning them to acquire their copyrighted content the lawful way, e.g., purchasing an HBO subscription.

Great, but HBO was still missing the boat.  HBO continued to cause their own piracy problems by allowing only Cable TV subscribers to access their content.

HBO Content was only available to Cable TV Subscribers

My biggest complaint against HBO: Failure to make content available to paying customers

For a while, my biggest critique of HBO was that they were not making their copyrighted content available to those who wanted to legitimately purchase a HBO subscription. Why? Because their “HBO GO” streaming add-on service was only available to those fans who paid a monthly Cable TV subscription.

“Cordcutters” (meaning, those who opted to “cut” their cable TV subscription) were outcasted. And as a result of not having a cable TV subscription, HBO inadvertently exacerbated their Game of Thrones piracy problem by preventing those who wanted to legitimately purchase access to watch the Game of Thrones episodes from doing so. In other words, no access = those would-be customers had no choice except to either not watch the series, or to turn to piracy.

HBO created criminals out of their fans by being loyal to the cable companies over their own customers. This was likely a smart business decision (cable companies pay HBO huge licensing fees for their content), but a wrong decision if they wanted to stop the piracy of their videos.

HBO stays loyal to cable company subscribers

HBO responds to our complaints and makes content available on Amazon, Hulu

HBO definitely has my respect, especially because they were flexible enough to notice that they were alienating their fans by allowing them to only connect through a Cable TV subscription.

HBO not only noticed that they were causing their own piracy problem, they took steps to fix it by making their content available to Amazon Prime Video customers, and to Hulu customers.

Thus, if you are an Amazon Prime subscriber, you can add-on an HBO subscription for $14.99/month.

HBO makes Game of Thrones episodes available to Amazon Prime customers

If you are a Hulu subscriber, you can also watch HBO as an add-on for the same $14.99/month.

HBO makes Game of Thrones episodes available to Hulu customers

Is $14.99/month a fair price for an HBO add-on subscription?

$14.99/month is more than an entire Netflix subscription, and last I checked, it is more than a Hulu subscription. Is it worth it to pay an additional $14.99/month just to have access to HBO shows?

It depends on each person.

In the end, the “market” will decide whether this is too much or too little to ask for to obtain a monthly subscription to HBO’s exclusive content. If people pay, then it will stay at this price (or increase, if there is enough demand). If people do not pay, then HBO will lower their price until they convert the would-be pirates into customers.

In Summary, HBO is doing things right.

The point is that HBO is taking steps to not only eliminate the availability of pirated content, and not only are they contacting the subscribers through their IP Echelon partner and instructing them to stop pirating their copyrighted content, but they are also taking smart steps to make their content available to those who wish to purchase their content.

NOTE: HBO will never get rid of piracy 100%, as this is nearly impossible and there will always be those internet users who will pirate copyrighted content, even when the paid version is almost free. [Case in point: Many Android apps are free, and the paid versions are $1.99 for a lifetime license to that app. Yet, there are still those users who will go out of their way to install the pirated version of that $1.99 paid app.] No doubt, HBO viewers will also always have this problem.

At the very minimum, however, I believe with every fiber of my being that HBO is handling their piracy problem the right way, and for this, HBO has my full support and respect.

…Do I need to hire you if I receive an IP Echelon DMCA notice?

Absolutely NOT. There is nothing that our Cashman Law Firm, PLLC needs to do for you to handle your HBO IP-Echelon DMCA notice.

Why? Because:
1) The IP Echelon DMCA notices are not copyright infringement lawsuits.
2) The IP Echelon DMCA notices are not settlement demand letters.
3) The IP Echelon DMCA notices are not affiliated with your ISP, and thus no response to your ISP is requested or required.
4) HBO is not suing internet users for copyright infringement… at least not yet.

In sum, there is nothing that you need me to do for you if you received an IP Echelon DMCA notice. The notice is merely a warning letter telling you to stop downloading their client’s copyrighted content illegally, and to find legal ways to obtain their content if you want to continue watching it.

IF THIS CHANGES, and HBO sues defendants for copyright infringement, you can be sure I would be screaming about this from the hilltops. IF HBO starts asking for money settlements in their DMCA notices, you can be sure I would write about it. However, for now, select a legal method of viewing HBO’s exclusive content, and enjoy the shows.


[CONTACT AN ATTORNEY: If you have a question for an attorney about the IP Echelon DMCA notices, 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 notice, or you can call/SMS 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.

Motions to Quash in one page (FAQ); when NOT to file a motion to quash.

What is a Motion to Quash, and how is it relevant in my copyright infringement lawsuit?

The first thing an accused defendant learns when reading the subpoena letter sent to him by his ISP is that:

1) He was implicated as a one of a small set of “John Doe” Defendants in a copyright infringement lawsuit.
2) The copyright infringement lawsuit was filed by a copyright holder apparently owning the rights to a movie he clicked on or downloaded.
3) He is being sued for $150,000 for the download of that movie.
4) He may or may not have actually downloaded that movie.
5) His ISP is being forced by a subpoena ordering them to turn over his true identity (along with other relevant information).

After asking around, he learns:
…6) There is a way to stop the ISP from handing out his contact information, and that is filing an “objection with the court.”
7) The “objection with the court” that he would file is called a motion to quash.

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 grasps onto.

The accused defendant thinks, “I am going to quash the subpoena!”  Then the next logical thought is to search the internet for “motions to quash,” or “forms on how to file a motion to quash,” etc.  What that accused defendant gets in the search results is almost never his answer on how to file the motion to quash, but some enterprising attorney who decided that he will 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 a motion to quash for him, the accused defendant never asks, “should I file a motion to quash?”

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“Should I file a motion to quash?”

Obviously as an attorney I need to dance around this issue 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” bittorrent-based copyright infringement cases for now OVER SEVEN YEARS that motions to quash are not an effective tool for stopping your ISP from handing out your information to the plaintiff attorney.

What exactly is a motion to quash?

Simplifying a bit, a motion to quash in the context of a bittorrent lawsuit tells the court that they do not have “PERSONAL JURISDICTION” over you.  In other words, a motion to quash informs the court that the plaintiff attorney / copyright troll filed the lawsuit against you in the *wrong federal court* (and plaintiff attorneys have been forced to reimburse the ISPs for making this mistake).

[The actual context is that this would be a motion to quash (or nullify) the subpoena which is forcing the ISP 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 a motion to quash 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 successful if the accused John Doe defendant filing the motion to quash lives in a state OTHER THAN where the lawsuit was filed.  For example, an accused defendant who is living in New York, and not in California where the lawsuit was filed), then the California federal judge will sever and dismiss that defendant from the lawsuit.  The motion to quash the subpoena as to that John Doe Defendant will be successful, and the ISP is released from its obligation to hand over the information for that John Doe Defendant to the plaintiff attorney.

The dismissal will be, however, “without prejudice,” meaning that the copyright holder will still have three (3) years from the alleged date of infringement to sue that defendant in the federal court of the state in which he or she lives.

When is a motion to quash not successful?

A motion to quash a subpoena is not successful when the accused “John Doe” defendant lives in the state in which he was sued.  Here, the judge will determine that the federal court has personal jurisdiction over that defendant, and the motion to quash will likely be denied.

The effect of this is that as soon as a motion to quash is denied, the internet service provider (“ISP”) [who initially held back that accused defendant’s contact information from the spreadsheet of names and addresses provided to the plaintiff attorney] will now separately comply with the subpoena as to that John Doe Defendant who filed the motion to quash and lost.  Think of this as the ISP sending that defendant’s contact information in a FedEx package to the plaintiff attorney stating, “this is the guy who filed the motion to quash and lost.”

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Isn’t it illegal for the ISP to hand out my information?  Can I sue my ISP if they comply with the subpoena?

This is actually an interesting topic which I first researched many years ago.  The answer is that it depends on whether the federal judge in your case considers the ISP to be under the rules of the Cable Act or not.  You would think this is an easy answer, “yes or no, does an internet service provider fall under Title II of the Communications Act of 1934?” but judges in the bittorrent copyright infringement cases have had different opinions of this over the years.

Unrelated to the very muddy area of under which Title of the Communication Act do ISPs fall, this issue has become relevant to our Cashman Law Firm, PLLC practice in defending bittorrent defendants.  The reason for this is that a cornerstone part of our strategy is not only understanding the personality and proclivities of the plaintiff attorney (will he name and serve, what are his motivations, etc.), but also to understand how each federal judge sees the validity of the bittorrent-based copyright infringement cases.  Judges who quote a certain set of case law (which places the ISPs in the context of being under the Cable Act) or who quote Arista Records LLC (sorry for the Wikipedia link) are usually plaintiff / copyright holder friendly.  Those that do not are more “John Doe” Defendant friendly.

Anyway, in 2011, I once looked into suing an ISP for disclosing the identity of a John Doe Defendant, and I was hit with a wall of messy, disorganized law with inconsistent case law rulings on this topic (whether ISPs fall under the Cable Act, whether they are to be considered under Title 2 of the Communication Act, or under some other classification).  In short, even if I were successful, in the end, the defendant would have only had damages of $1,000, so it made no sense to fight the lawsuit (the time alone to file it would have cost the defendant the slap-on-the-wrist money he would have made from being right).  Anyway, just a fun tidbit.

The plaintiff attorney’s response to a motion to quash

Historically, the plaintiff attorney who sees an accused John Doe Defendant file a motion to quash will claim that the defendant lacks “STANDING” to file the motion to quash.

He will claim that the John Doe filing the motion to quash was never named and served in the lawsuit (and might never be named and served).  They will point out to the court that the purpose of the “JOHN DOE” placeholder, by definition, is that this is an unnamed defendant.  In order to determine who the actual defendant-to-be-named is in the lawsuit, they need the subscriber’s identifying information to determine whether this subscriber was the downloader or not.

[A plaintiff attorney deciding to “NAME AND SERVE” a defendant is outside the scope of this article.  For more information on what to do when you are named and served, click here.]

As a result, federal judges sometimes buy this argument and they deny the motion to quash, or they find some other justification to deny the motion to quash.

A quick comment about the personalities of the plaintiff attorneys who represent the copyright holders:

Plaintiff attorneys / “copyright trolls” have a bad reputation because they have been known to incorporate their personal hurt feelings and egos into the prosecution of their client’s cases.

The purpose of a “copyright troll” / bittorrent-based copyright infringement lawsuit is to extract as many multi-thousand dollar settlements as possible in return for the $400 filing fee their client paid to file the lawsuit.  Most of these attorneys work on a commission basis, so the time they spent “fighting” the case is court is wasted time.

When a defendant files a motion to quash, this forces the plaintiff attorney to oppose the motion to quash.  Following most oppositions comes a hearing (which sometimes takes up the entire morning, even though the hearing itself on the motion to quash is 5 minutes long).

Thus, any defendant who files the motion to quash ends up with a vindictive attorney who is looking to recoup that time lost in dollars and commissions.  This translates into an overly hostile or vindictive attorney who increases the settlement price to “nail” that defendant who filed the motion to quash.

Instead of a motion to quash, what should the first step of defense be?

Great question.  Rather than jumping to file a motion to quash, the accused “John Doe” defendant needs to figure out whether he actually downloaded the movie that is the subject of the lawsuit.  Next, whether he downloaded it or not, he needs to speak to an attorney to determine what his options are.

Most attorneys who understand that motion to quash attempts are usually unsuccessful will instruct the client to forego filing the motion to quash, and to move right into defending the claims against the client.

There is a long period of time in which the “John Doe” defendant remains anonymous.  During this “John Doe” phase, the anonymity of the accused John Doe Defendant is preserved.  Hiring an attorney at this point (before being named and served) provides you with so many more options than you might have after being named and served.  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 “John Doe” phase of the lawsuit, the courts issue FRCP Rule 4(m) extensions over and over until the judge forces the plaintiff attorney to name and serve some defendants or stop wasting the court’s time.  During this time, an attorney defending a John Doe Defendant has the opportunity to obtain whatever evidence the plaintiff attorney has on that defendant, and he has the opportunity to explain that it was not the accused John Doe Defendant who did the download.

If the client actually did the download, the defense attorney has other tools at his disposal (e.g., the “no settlement” route, the “ignore” route, or the minimum statutory damages strategy, if the plaintiff attorney names and serves the defendant or otherwise won’t negotiate a settlement).  Obviously, negotiating a settlement for a defendant who actually did the download is usually the quickest way out of the lawsuit (watch out for settlement factory attorneys and so-called defense attorneys who actually represent the copyright holders (“weretrolls”), but it perpetuates the whole copyright troll scheme.

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Why FIGHTING the case is not the best answer either (even with an innocent defendant).

Lastly, there is always the option to “FIGHT,” or litigate and defend the claims against you, like a hero slaying a “copyright troll” dragon (I did not make up that analogy).  However, there are bad attorneys here too, because they really want you to pay them an hourly fee for the next few hundred hours.

They’ll claim that they are defending your case because the copyright holder does not actually have evidence of copyright infringement (which is true — what they actually have is called “snapshot evidence,” which is not copyright infringement).  They will also explain that copyright law gives the prevailing party (the “winner”) the attorney fees they paid to their attorney.

Thus, they can spend $20K-$30K on the litigation, and they’ll recoup it from the copyright troll when they win their case, right?? Wrong.

Copyright Troll / Plaintiff Attorneys know EXACTLY WHEN to dismiss an innocent defendant to avoid having to pay attorney fees.

The plaintiff attorneys are very aware of the attorney fees which are awarded to the winner of the lawsuit.

Thus, they know EXACTLY WHEN to dismiss an accused defendant (usually after being named and served, right after discovery (think, depositions, interrogatories, evidence gathering, and questions under oath, etc.) once the defendant establishes that he actually did not do the download).

This means that the plaintiff attorney deprived the wrongly accused “innocent” defendant of ALL the money and months of anguish he paid to his defense attorney.

The defendant is dismissed, taking nothing back for his losses.  However, the defense attorney sits there fat and piggish having taken every penny the named defendant had.

Chances are, that attorney never explained to the named defendant that such a dismissal could happen, or else the defendant may have chosen to settle early on (and the defense attorney would have made significantly fewer dollars in fees).

Why FIGHTING based on the argument that the plaintiff attorney has no evidence is also dumb.

This deserves to be its own post, but I’ll get straight to the point.  Representing a client who did the download based on the argument that the plaintiff attorney has no evidence is foolish, and here is why:

Even if I were to charge a defendant only $100 to defend the claims against him (if I said pro bono or no fee), and I defended that client on the basis that the plaintiff attorney had no evidence against my client [based on the “snapshot evidence” theory]:

*EVEN IF I AM RIGHT* (that “snapshot evidence” is insufficient to prove copyright infringement), MY OWN CLIENT WHO DOWNLOADED THE MOVIE WOULD BE THE ONLY EVIDENCE THE PLAINTIFF ATTORNEY WOULD REQUIRE TO PROVE COPYRIGHT INFRINGEMENT.

Why?  Because after being named and served, there is something called “discovery,” where among other things (such as having a computer forensics expert check the computer for the infringing copyrighted title), my own client would be forced to answer questions under oath, AND ONE OF THOSE QUESTIONS WOULD BE, “DID YOU DOWNLOAD THE XYZ FILE USING BITTORRENT?”

At that point, once your client admits guilt in a deposition, or otherwise under oath, there is nothing to do but to settle.  Snapshot evidence at that point becomes irrelevant to whether this defendant downloaded the film.

As one attorney cleverly said it, I believe today on Twitter:

“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.”

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IN SUM, INSTEAD OF THE MOTION TO QUASH, CONSIDER YOUR CASE.

Thus, for someone who received notice that their ISP is handing out their information to the plaintiff attorney, don’t worry about the motion to quash.  Ask yourself whether you recognize the movie you are accused of downloading, and whether you downloaded or watched the movie without a license (e.g., with bittorrent, or with Popcorn Time, etc.).

Whether the answer is yes or no, don’t wait.  Hire an attorney, explain your situation, and let the attorney either 1) convince the plaintiff attorney that you did not do the download or will not otherwise settle (a.k.a., the “no settlement” representation), or 2) have the attorney settle the claims against you.

This time while you are an “anonymous” John Doe is precious to you; don’t squander it.

Fighting (defending the claims against you in litigation) only makes sense when 1) you understand that EVERYTHING YOU PAY YOUR ATTORNEY TO DEFEND YOU WILL BE LOST, but you do not want to give in and settle the claims against you, and 2) when you want your attorney to file an answer, admit guilt, and argue $750 minimum statutory damages (when you did the download and the plaintiff attorney is unwilling to settle or negotiate fairly).

All other times, one of the “ignore” routes or “settle” route is the more economical approach.

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The life of a subpoena, and at what point you are no longer anonymous.

TIMELINE: ISP SUBPOENAS AND ANONYMITY

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.

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The exact moment your anonymity expires.

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.

NOTE: If you choose to fight, be aware of Prof. Matthew Sag’s paper entitled “Defense Against the Dark Arts of Copyright Trolling,” and the considerations surrounding using what are otherwise “valid” defenses to copyright infringement which likely DO apply to your case.

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ISP Subpoena Timeline & Anonymity Timeline