Category Archives: Motions to Quash

HOW IT HAPPENS – HOW PAUL BEIK HAS MALIBU MEDIA DEFENDANTS IN TEXAS FEDERAL COURTS NAMED AND SERVED.

Paul Beik (Paul S. Beik of the Beik Law Firm PLLC) is a Texas-based plaintiff attorney who has “served” many defendants in Texas lawsuits for his Malibu Media LLC client (“served” as in someone knocking on a defendant’s door in a bittorrent copyright litigation lawsuit and handing the former John Doe Defendant a copy of the complaint; not “served” as in “thousands served” in a McDonald’s hamburger way). [Sorry for the play on words — that came out when editing this article.]

Paul Beik has been naming and serving Malibu Media LLC v. John Doe defendants since 3/28/2018 (or at least 3/28/18 was the first time I contacted him before having a client served; prior to this, his predecessors Andrew Kumar and Michael Lowenberg of the Lowenberg Law Firm PLLC filed Malibu lawsuits in TX since 10/27/2016), but unlike Beik’s cases, their John Doe defendants were not regularly named and served.

More generally, Malibu Media LLC has likely filed over ten thousand copyright infringement lawsuits against anonymous John Doe defendants since 2012 (I stopped counting in 2016, when Malibu temporarily stopped filing lawsuits, and even then, there were already 6,000+ cases filed across the US).

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Prior to Paul Beik taking over as Texas local counsel for Malibu Media LLC, while some Texas John Doe defendants were named and served here and there, most of them historically were never served. The reason for this is that Malibu Media LLC’s general counsel (currently represented by the Lomnitzer Law Firm in Florida) always let the local copyright attorneys (here, Paul Beik) decide how far into litigation they are willing to go — specifically whether they are willing to have the John Doe Defendants named and served.

How Malibu Media LLC lets their attorneys “grow” on the job.

[Again, the header is not to be taken out of context given the subject matter of the Malibu Media LLC adult film cases.]

Malibu Media LLC’s general counsel often hires lawyers in each state who know federal procedure [but who do not necessarily know any copyright law]. They often let that attorney “learn on the job” by following instructions, templates, and scripts I believe are provided to every new Malibu Media LLC local counsel. I have referred to these new plaintiff attorneys in the past as “fresh meat,” because the filings in every Malibu Media LLC case look exactly the same as the filings I have seen in thousands of Malibu cases over the years filed in federal courts in California, New York, Michigan, and across the US.

I have always called Malibu Media LLC cases “a settlement extortion scheme.” For years (prior to Paul Beik taking over the Texas Malibu Media cases, Malibu Media LLC cases were filed against anonymous John Doe Defendants, and they were dismissed as John Does (in my opinion, because of the squeamishness of previous Texas-based Malibu Media LLC attorneys to name and serve defendants and move forward against them in litigation). Not so with Paul Beik of Beik Law Firm PLLC.

Paul Beik has served Malibu Media LLC Texas defendants in the US District ,Court for the Southern District of Texas with regularity. In filing the lawsuit, he uses the same (identical) wording that other Malibu Media LLC cases use in other federal courts making an attorney who is not paying attention think he is inexperienced [that link (above) merely goes to a reference to “settlement factories,” described below]. Even if you look at Paul Beik’s case dockets, his Texas-based Malibu Media LLC cases appear to be nearly identical to every other Malibu Media LLC case filed across the US.

However, unlike many other “copyright troll” plaintiff attorneys, Paul Beik is not afraid to name and serve a defendant.

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Federal Rules of Civil Procedure on naming and serving a defendant (the 90-day rule).

The reason this is relevant is because 90 days after a complaint is filed in a federal court, FRCP Rule 4(m) gives a plaintiff attorney (here, Paul Beik) 90 days to amend the complaint and “name and serve” a John Doe defendant.

Beik could also dismiss the case before the 90 days have elapsed [which almost never happens], or he can ask the court for an extension of time to have that Texas defendant named and served [that happens].

The point here is that Paul Beik is under a procedural deadline to name and serve a defendant. Thus, whatever so-called “anonymous” settlement he can pull from the Malibu Media LLC John Doe defendant before the 90 days have elapsed, his client wants him to take.

Unfortunately for some John Doe Defendants, when they do not respond to his requests for settlement or they do not hire an attorney to represent them in this case, as a matter of procedure, instead of dismissing the case without prejudice and saying to the accused defendant “just kidding,” Paul Beik moves forward with litigation and has that Texas defendant named and served .

This is relevant because in litigation, there will become a time where the question of “whether the named and served Texas defendant actually downloaded Malibu Media’s copyrighted titles” becomes relevant. This happens in a deposition, where the defendant is placed under oath in front of a court reporter and the plaintiff attorney takes his testimony. *THIS* is where Paul Beik succeeds in forcing a settlement from a named and served Texas defendant who did not previously settle the claims against him.

NOTE: *THIS* (deposition) is also the moment where the named and served Texas John Doe Defendant is dismissed from liability [to avoid having his client pay the defendant’s attorney fees].

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Paul Beik Malibu Media Texas settlement scheme
Perlinator / Pixabay

HOW PAUL BEIK HAS MALIBU MEDIA LLC DEFENDANTS SERVED.

The complaint and request to disclose identity of subscriber.

First, Beik files the complaint alleging copyright infringement of Malibu Media’s copyright adult film titles. He files the lawsuit against ONE anonymous “John Doe” defendant (who lives in the Texas state, so there is no motion to quash to file [the court has personal jurisdiction over the defendant]). Beik mentions to the court that he does not yet know the identity of the defendant, and he asks the court to provide him an order to command the Comcast ISP (or AT&T ISP) to disclose the identity of the alleged downloader of Malibu Media LLC’s copyrighted titles.

Because courts are friendly to copyright holders, the Texas judges grant Paul Beik his request and order the ISPs to provide him the information that he needs.

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The subpoena sent to the ISP ordering it to reveal the subscriber’s identity.

Paul Beik then forwards a subpoena to the Comcast (or whichever) ISP, ordering the ISP to turn over the identity (and whatever else is approved by the court) of the account holder who was assigned the IP address at the time that the downloading of Malibu Media LLC’s adult titles took place.

The ISP’s duty to protect their customer and steps they take.

The ISPs are under a duty [an order, signed by the federal judge] to hand over this information to the plaintiff attorney (here, Paul Beik). To protect their customer, the ISP sends over [what I call] an ISP Subpoena Letter informing the Texas account holder that he has been implicated as a defendant in the Malibu Media LLC lawsuit.

The ISP Subpoena Letter also informs the account subscriber that if they wish to stop them from handing over their information, they may file a motion to quash (they call it “an objection with the court”). A motion to quash, if successful, would prevent the ISP from handing over the account holder’s information to Beik Law Firm PLLC (the plaintiff attorney — Paul Beik’s office — NOT to the court).

You can read more into motions to quash here (this isn’t the place to discuss this topic), but the jist of a motion to quash is that it tells the US District Court that it does not have “personal jurisdiction” over the defendant. This primarily occurs if the defendant lives outside of the state in which they were sued.

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Paul Beik is dangerous to John Doe defendants because he has them named and served.

Unlike many other Malibu Media LLC attorneys who are running a settlement extortion scheme (“settle whether you did it or not”), Paul Beik actually takes the additional step of having the defendant who did not settle the claims again him named and served.

In other words, if that Texas-based John Doe Defendant does not settle the claims against him or her, Paul Beik will amend the complaint and will add the actual ISP account subscriber’s name and address to the complaint. This forces the now “named and served” defendant into litigation, where they have 21 days to file an answer with the court or face a default judgement against them.

This is where Paul Beik takes the Malibu Media LLC cases (which for years, I considered nothing more than a “bluff”) one step further than many others — he actually has his Texas John Doe Defendants named and served, forcing them into litigation whether they like it or not.

Now obviously the purpose of this article was to identify Paul Beik as a Malibu Media LLC attorney, and to note that he DOES name and serve defendants. “Check.” This is not to say that he will not settle a case after a defendant is named and served — he will still settle a case, as this is the ultimate reason he has named and served the defendant [a settlement is more valuable to Malibu Media LLC than a judgement of $150,000 which they will never collect]. However, I simply want to point out that Paul Beik does name and serve defendants.

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A quick note about out-of-state settlement factory attorneys.

Lastly, there are many out-of-state attorneys who are not licensed in Texas who are actively advertising and are trying to take as many Malibu Media LLC clients from across the US as they can. Among them are a few [what I call] “settlement factories” (settlement factories are attorneys who run a volume-based business; they try to scare every defendant into settling the claims against them, and in my opinion they cause far more problems for the defendant than they solve).

There used to be only a small handful of attorneys who I considered settlement factories, but unfortunately, with the younger crowd graduating law school and joining the ranks, I am seeing more and more inexperienced lawyers throw up a shingle and a blog and act as if they are a legitimate law practice, when really they are just another “settlement factory.” I have even had confrontational experiences with these attorneys — many of whom did not understand copyright law at all, and one who even thought these cases were criminal. “Umm, no.”

In short, if you are sued by Paul Beik, I strongly recommend that you hire a Texas-licensed attorney to handle your case. I don’t care if you hire my Cashman Law Firm PLLC (often I don’t even take clients, and here is why) or if you hire another Texas attorney who is competent to work in these cases (if I cannot represent you, I will happily refer you to an attorney in Texas who can assist you).

While it is impossible to know which Texas-based Malibu Media LLC John Doe Defendants will be named and served, based on my knowledge of Paul Beik and his timing, I will do my best to list cases which at the moment are at risk of being named and served. TBA.

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[CONTACT AN ATTORNEY: If you have a question for an attorney about the Texas Malibu Media LLC 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 Malibu Media LLC 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.

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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.

THIS HAS BEEN A LAWSUIT-NEUTRAL ARTICLE WRITTEN FOR THE TORRENTLAWYER UNIVERSITY.

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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.

[CONTACT AN ATTORNEY: If you have a question for an attorney about your lawsuit and options on how to proceed, 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].

ISP Subpoena Timeline & Anonymity Timeline

Need to rehash some bittorrent concepts because they are just as relevant today as they were five years ago.

In July, 2010, this blog was started to address the at-the-time unknown problem of copyright trolling.  For years, myself and my staff wrote articles explaining the business model of copyright trolling, which at the time was an adaptation of patent trolling (where “patent trolls” would file [often frivolous] lawsuits against alleged infringers who refused to pay what appeared to be a “shakedown” of the patent holders [e.g., “pay us or else you will end up having to pay even more to defend the claims against you in a federal court”], even when the patent being asserted against the would-be infringer had absolutely nothing to do with the product the targeted company was producing).

There were common threads between patent trolls and copyright trolls, and as the cases developed, there were common themes of how a copyright troll must act to make his model of extorting the public (the bittorrent internet users) profitable.  At the time, that included questions of 1) where and how can a copyright enforcement company or lawyer sue a group of defendants (personal jurisdiction), 2) how to link non-related downloaders into a cohesive set of defendants into a cohesive set of “John Doe Defendants,” (joinder, and my controversial strategy to force a copyright troll to sue the entire bittorrent swarm when a defendant is named and served) and 3) how to avoid risking the potential settlements from hundreds or thousands of accused bittorrent users by moving forward and “naming and serving” one or more defendants.  There were also time limits they faced based on a) how long the ISPs retained the records of which IP address was leased to which account holder / subscriber, b) statute of limitations on how long a copyright holder has to file a lawsuit, and c) how long a copyright troll attorney may keep a case alive before a judge imposes the time limits described in the Federal Rules of Civil Procedure (FRCP Rule 4m, a.k.a. the “120 Day Rule”).

Then, over the years, there arose a confusion under the discussions of “net neutrality” asking questions such as whether an internet service provider (ISP) was governed under the cable act, and if so, under what title.  The reason for this was that there were allegations that various ISPs were outright sharing the contact information of its subscribers without valid court orders to do so, thus violating the privacy rights of its subscribers.

In sum, there were a lot of issues, and we tackled each one over the course of almost five years.  The goal was to educate the bittorrent user and the accused downloader about the issues so that they understand how to act, react, and in many cases, fight against a group of attorneys with questionable ethics.

The problem is that these articles — the ones that have been so helpful to tens of thousands of accused defendants — these articles have been buried by the search engines because they are simply now aging and many articles are now many years old.  An accused defendant can no longer search for a “copyright troll” on Google and find any of my older articles.  [And, enterprising attorneys (and good for them) have put up websites containing SEO-based content full of keywords in hackneyed sentences, but devoid of useful content (e.g., the “contact our law firm, we can help you with your copyright troll lawsuit issue” type of website), while what I consider to be the “useful” content (not only mine, but content written by other attorneys in their blogs, and proactive users [really, trailblazers such as “Sophisticated Jane Doe” of FightCopyrightTrolls and “DieTrollDie”] in their respective blogs) is no longer accessible by typing the name of the particular copyright troll, issue, or case that has been recently filed.

What I will be doing to remedy this as far as this blog is concerned — and I apologize up front to the thousands of you who get updated on each and every article that I or a staff member of mine writes — is that I need to rehash some of the “older” content on the educational topics that I have already covered in the blog ad nauseam. The reason for this is that the older content explaining the legal concepts in terms of the bittorrent lawsuits (and now in terms of the DMCA letters being sent to subscribers through the ISPs) is just as relevant today as it was five years ago.  There has been little-to-no judicial or legal oversight of the copyright trolls from the attorney generals of each state and from the lawmakers (both federal and in each state), and the problem and issues surrounding “copyright trolling” is just as relevant today as it was almost five years ago.

For these reasons, I need to violate my own preference not to repeat information or content that has already been described or hashed-out in previous articles (my opinion is that one article describing a topic is enough, and writing multiple articles containing the same topic “waters down” or “cheapens” the content of a website).  The reason I now feel the need to rehash some of the older topics is to re-teach those who have not yet been victimized by the copyright trolls, as my older articles are no longer found, even by those looking for that particular topic.

ALSO.  Copyright trolls are now enjoying a seed of legitimacy by the courts, where once upon a time us defense attorneys were “winning” the cases by arguing concepts such as “an IP address does not equal a person,” or “my client had an open wireless router, it could have been anyone who downloaded this video,” the arguments themselves have also aged and are now increasingly being ignored by the courts, even though the arguments remain “an elephant in the room,” meaning, just as valid today as they were yesterday.  On the flip-side, faulty and failed arguments (e.g., “are you negligent if you let someone else use your internet connection to commit copyright infringement” [Answer: NO!]) are being reasserted by the copyright trolls, and to my utter disbelief, they are not immediately being dismissed by the judges as being a faulty argument.

Copyright trolling has not changed in the past five years, and the successful arguments defending a case do not deserve to be ignored just because they have been used successfully by defendants in older lawsuits which too are aging.  Ignoring good case law is contrary to law, as successful arguments in one jurisdiction are binding on all other judges in that federal district, and are persuasive on cases in the federal districts in other cases.  Yet, I see more and more lawlessness in judges who ignore the case law from not only other jurisdictions, but from their own jurisdiction as well (creating a “split” in the court), and they are denying a John Doe defendant’s ability to assert what was a successful argument in another court (even one binding upon them in their own jurisdiction).

In sum, judges are allowing plaintiff copyright holders to sue larger number of defendants each week, even though nothing has changed making this new trend permissible (in my opinion, whether 200 defendants were sued by a plaintiff attorney in one lawsuit or in ten cases [having 20 defendants in each case] filed in the same week still means that 200 defendants were sued; it does not matter that the plaintiff made the cases “appear” to be smaller, especially if they are implicating the same bittorrent swarm in each of the ten cases).

Remember, the underlying copyright troll business model of “shakedown, extort thousands of dollars from each defendant, but avoid moving forward against anyone [but pretend that you are prepared to move to trial]” is still the same as it was five years ago. It should not matter whether the content of the lawsuit is a Hollywood movie or an adult film.

[2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since the two entities operate almost the same way, e.g., sending DMCA copyright infringement notices to the subscriber directly via the ISP, this article is also relevant to RIGHTS ENFORCEMENT.]


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