Category Archives: Torrent

Revisiting Harvey for a moment, and turning our attention to Florida.

To the many of you who have been inquiring as to the safety of our family and our Cashman Law Firm, PLLC and its employees…
Thank you.  Our family is well, and our 4th Floor office was untouched by the storm (although it was inaccessible for a few days). However, I cannot say the same thing for family members and friends who had their homes flooded, where in some cases water covered half of the windows (meaning half of the houses were literally under water, both inside and out). I even saw pictures of streets not too far from me where water not only covered the streets, but almost covered the stop lights far above the street. This has chilled me to the core, because even though I have seen floods and hurricanes in Houston before (and we are known for surviving rough weather events), some of the things I saw, my eyes still do not believe.

I understand that we are only slightly above sea level, but walking the streets seeing the contents of the community’s home on each person’s front lawn, I still cannot imagine or picture in my mind’s eye how water can flood so high.  I know that we received five or six feet of rain, but Houston has an elaborate network of bayous and flood prevention mechanisms which would ordinarily drain heavy rains into the sea.  The bayous do function well, even if they flood a foot or so. With this storm, I expected them to flood with maybe an additional 1-3 feet of water (something I refer to as “car killers,” which friends have lost cars trying to drive through). But to see streets, mailboxes, and street lights under water, and to see houses just a few miles away from me covered literally just below the roofs — this was something I never imagined I would ever see.

In short, the news and the media are rightfully turning their attention to Florida, and those living there have my empathy and my support in whatever way I can help. Our Cashman Law Firm, PLLC has donated to the hurricane relief funds and each of us personally has spent most of our week helping with disaster relief. My wife and kids spent countless hours preparing meals with the Houston community for those who have been displaced, and the work, the rebuilding, and the donations will need to continue long after the media has forgotten both Houston and Florida.

Why Kodi users are being sued for copyright infringement.

You CAN be sued for using bittorrent-based Kodi Add-ons

I almost fell off my chair when I read this. Kodi users are being sued for copyright infringement?!? The answer is yes, Kodi users who are tweaking the Kodi software to run Kodi Add-ons which provide copyrighted movies using peer-to-peer (P2P) or bittorrent are 100% at risk of getting sued for copyright infringement.

Kodi Add-Ons Users Sued For Copyright Infringement | TorrentLawyer

Didn’t I write many articles saying that Kodi users wouldn’t get sued?

Yes.  I have been watching this topic for years now on whether it is possible for someone streaming movies to get caught — not in the context of Kodi Add-ons, but in general.  Until recently, the answer was “no, the copyright trolls have not yet caught up with technology, and there is no way a person will get sued for streaming movies.”  Today I change my opinion, but as you’ll read, I do so cheaply because the cause of getting caught using Kodi is the fault of Kodi Add-ons developers who incorporated bittorrent into their plug-ins.

2015 – “No, you CANNOT get sued streaming videos.”

Jumping back a bit, the first time I wrote about the possibility of internet users getting caught streaming was in October, 2015.  Fresh in the mind of the internet was the Ashley Madison hack exposing millions of internet users who had an account on their “let’s cheat” website.  The topic of whether it was possible to have your adult film viewing habits exposed to the public was fresh on the minds of internet users.  My opinion back then was that “you likely CANNOT get caught streaming adult films.”  Then in 11/2015, I was asked whether an internet user can get caught viewing “You Tube” like videos, and my opinion was, “maybe, but it likely would not happen because there are too many steps.”

2017 – “It’s possible to get sued, but the technology needs to advance and the trolls are still stuck on bittorrent lawsuits.”

Jumping ahead to 3/2017, I was searching for a common copyright troll behind each of the movie lawsuits, and I wrote a quick article entitled, “Can I Get Caught Streaming Movies Over The Internet?”  My point of this article was to say, “yeah, it is possible, but unlikely that someone would get caught streaming movies,” parroting my 11/2015 article.

As a response, a viewer asked me to analyze Kodi and the Amazon TV Fire Sticks, and again in 3/2017, I wrote a second article on Why I would NOT put Kodi on an Amazon Fire TV Stick“.  At the time, I was still of the opinion of “you likely won’t get caught, but beware of Amazon turning you in.”  Again, this opinion had nothing to do with the Kodi Add-ons, as I did not suspect any developer would create Kodi Add-ons which connected to the bittorrent networks.  That would have been silly, and any developer that knew anything about piracy lawsuits wouldn’t be reckless enough to expose their users to the bittorrent networks.

Then in 4/2017, the Pornhub lawsuits happened, and thinking about the lawsuit (and the way the plaintiffs went about it all wrong), it occurred to me that Google Analytics could expose an internet user to a copyright infringement lawsuit.  This was possibly the first time I had the opinion that “yes, in the future, you can get sued for streaming movie content.”  Again, in the future when technology advanced further and copyright trolls moved past bittorrent lawsuits.  Again, no mention of Kodi Add-ons.

In 5/2017, I applied this line of thought to write an update on the risks of using Kodi on an Amazon Fire TV stick, and I wrote that “there is another way to get sued using Kodi on an Amazon Fire TV Stick — via Google Analytics.”  So while my answer was now “yes, you can get caught,” my thought was “just block the Google Analytics plug-in and you don’t need to worry about this.”  As far as copyright trolls suing Kodi users based on these revelations, well, this was far into the future.  Once again, no mention of Kodi Add-ons.

What changed? How are Kodi users getting sued?

What I did not anticipate is that there are a number of Kodi Add-ons which use bittorrent to provide copyrighted content to their users. Obviously if certain Kodi Add-ons are using bittorrent — and the assumption is that the Kodi user is using Kodi without a VPN — then YES! Someone using Kodi Addons which connect to streamed content via “peer-to-peer (P2P)” bittorrent networks can certainly get caught!

Why using Kodi Addons can be the same as using a bittorrent client

Let’s simplify this.

If you use Kodi with a VPN connection, and the Kodi Addons plug-in that you enable provides content to you via bittorrent, *THEN YOUR KODI SOFTWARE IS NOTHING OTHER THAN YET ANOTHER BITTORRENT APPLICATION*. What this means is that when your Kodi Addon connects to the bittorrent, it is *YOUR* IP address that shows up in the bittorrent swarm. Thus, when the copyright troll or their so-called “investigators” download the list of IP addresses who have downloaded a particular movie, your IP address will show up. At that point you have been caught downloading or streaming the copyrighted movie without a license, and you should not be surprised if you receive a subpoena notice from your ISP informing you that you have been implicated as a John Doe defendant in a copyright infringement lawsuit.

It really does not matter that you were using Kodi, because using Kodi with a Kodi Addon which downloads movies for you using bittorrent is the SAME as you downloading that same movie from The Pirate Bay using a bittorrent client.

Which Kodi Add-ons use bittorrent?

So, the next question is… which Kodi Addons use bittorrent? (Kudos to Sam Cook, my source for this information. If anyone knows of others, please feel free to add them to the comments below this article, and I will update this list.)

As of a few months ago, the following Kodi Addons use bittorrent:

  • Quasar
  • Popcorn Time
  • Plexus
  • Ace Stream
  • SportsDevil
  • P2P Streams
  • Castaway
  • Red Beard
  • Bubbles

NOTE: Why some of these Kodi Addons might no longer exist

My thoughts: Kodi Addons recently suffered a huge loss after a large number of them shut down in response to a few prominent lawsuits. Thus, these addons I pasted here from Sam Cook’s article possibly no longer exist.


NOTE: Obviously using Kodi to stream movies or copyrighted content was not why Kodi exists. However, for the purpose of this article, assume you are tweaking Kodi to stream movies.

Before you use one of the Kodi Addons, check to see whether it uses bittorrent or some form of P2P to download content for its users. Assuming you will be using Kodi for the purpose of acquiring or viewing copyrighted movies without a license (again, not my recommendation), avoid these plug-ins and any plug-ins which connect you unwittingly to bittorrent networks.

Advice from a Kodi reddit user:

Generally speaking, if the setup or configuration of an add-on requires you to make significant changes to your environment, it’s probably to support p2p. If the setup installs and then starts showing you sources to stream from immediately without having to add/configure a bunch of extra crap, it’s just direct streaming from a web source and has no p2p/upload component to it. The only 2 I’ve seen that are “recommended” by certain people and are p2p are sopcast and acestream. anything else just blatantly calls itself “bit torrent stream” or “best torrent addon” or “p2p streams” which should all be no-go’s if you don’t already have experience masking your location.

My Opinion: Kodi Add-Ons can get you sued.

In sum, back to Kodi itself. It is no longer my opinion that you cannot get sued for using Kodi. If you are using one of the many Kodi Addons which connect a user to copyrighted content using bittorrent, then of course you can get sued. The reason for this is bittorrent exposes the IP address of the user who is not masking their IP address with a VPN. Personally, it is careless for programmers to make Kodi addons which use bittorrent, which is not what the Kodi software was meant to do.


GOT WARNING LETTER FOR USING KODI?” written on 7/20/2017 by The VPN Guru
Kodi BAN – Kodi Add-On users panic over WARNING letter from US Department of Justice” written on 4/8/2017 by Express
P2P Kodi Addons – 2017 Updates for Kodi Users” written on 3/28/2017
Who’s behind the Kodi TV streaming stick crackdown?” written on 2/8/2017 by The Register
Comcast Starts Issuing Copyright Infringement Notices to Kodi Users” written on 10/21/2015 by Cord Cutters News

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

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together. That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

UN4 Productions movie lawsuits spread with Boyka: Undisputed 4

UN4 Productions ISP Subpoenas sent

I don’t take pleasure in writing this, but there is a new copyright troll on the block named UN4 Productions, Inc. (a Millennium Films company). For the past two weeks, UN4 Productions ISP subpoenas have been going out to internet users informing them that they have been implicated as being a John Doe defendant in the UN4 Productions lawsuit (a.k.a. the Boyka: Undisputed 4 lawsuit). Each lawsuit claims copyright infringement damages of $150,000 for the illegal download or streaming of the Boyka: Undisputed 4 movie using bittorrent, or some other streaming device.

The name Boyka generally means “One Who Terrifies in Battle,” fitting for a gory fighting movie. Boyka: Undisputed 4 focuses on the story of Yuri Boyka, a mixed martial arts fighter.

Boyka: Undisputed 4 Video Trailer (click here)

Why the Boyka: Undisputed 4 ISP subpoenas mirror what we have seen

As soon as I looked into this new copyright troll, I realized that this is a “wolf in sheep’s clothing” copyright troll. The UN4 Productions ISP subpoena that you just received in the mail is coming from the same copyright enforcement entity (think Carl Crowell, or who just finished sending you bittorrent lawsuits for the ME2 Productions movie lawsuits, the Cook Productionsmovie lawsuits, the I.T. Productions movie lawsuits, LHF Productions movie lawsuits (think, London Has Fallen), and so many others.

Are the Boyka: Undisputed 4 movie lawsuits targeting a particular ethnic group??

The difference here with the Boyka: Undisputed 4 lawsuit is that this pirated movie has been dressed up as an ethnic movie (the previews I saw had arabic subtitles). Think, ME2 Productions, Inc. with no shirt, ripped bloody muscles, adrenaline-pumping punches all in line with the three previous Undisputed 4 movies [Undisputed (2002), Undisputed II: Last Man Standing (2006), and Undisputed III: Redemption (2010]).

UN4 Productions ISP subpoenas sent for the Boyka: Undisputed movie lawsuit
antfrank / Pixabay

“tracking an ethnic-based movie based on a specific nationality”

Again, just in case you did not get my innuendo. The twisted offense here with the Boyka: Undisputed 4 lawsuit is that the  UN4 Productions copyright trolls have developed a new way of catching people — by tracking an ethnic-based pirated movie based on a specific nationality.  They spread a fishnet, monitor the downloads, and vwallah!  They catch bittorrent downloaders with ethnic names. When that defendant claims “it isn’t me who did the download!” the plaintiff attorney just chuckles at Youssef, Oleksiy, Omar, or whichever ethnic name just happened to be the same ethnic group or nationality for whom the movie was made.

UN4 Productions ISP subpoenas sent for the Boyka: Undisputed movie lawsuit

How you can understand the Boyka: Undisputed 4 cases

First of all, at some point this evening, I will be writing a FAQ page so that you can understand what is going on with your Boyka: Undisputed 4 lawsuit.  I will be posting that link here.

To keep things simple, when you think of the UN4 Productions ISP subpoena you just received, or when you think about the Boyka: Undisputed 4 movie lawsuit, just think to yourself, “this is ME2 Productions in disguise. Same rules apply.” With the UN4 Productions lawsuit, the plaintiff attorney lawyers are exactly the same lawyers as with the ME2 Productions, Cook Productions, LHF Productions lawsuits we’ve been seeing for months now.

Thus, you must come to the logical conclusion that the Boyka: Undisputed 4 movie lawsuit is simply another Carl Crowell ( common troll lawsuit with the same attorney characters we have seen before. We can infer that behind the scenes, the common troll entity (with MPAA’s blessing) approached the real production company of the Boyka: Undisputed 4 movie, and offered to license the rights to monetize the copyright rights on behalf of the Boyka: Undisputed 4 copyright holder (this means, sue defendants, extort multi-thousand dollar settlements from each John Doe Defendant, name some, dismiss some).

How we at the Cashman Law Firm, PLLC understand the Boyka: Undisputed 4 cases.

In sum, because we know the copyright enforcement entity behind the scenes of this lawsuit (think, APMC, or Anti-Piracy Management Company), and because we know the proclivities of the plaintiff attorneys (who names and serves, who settles, etc.) coupled with the federal judges who are assigned the various cases in each federal district court, we can predict with some relative certainty what will happen in each case.

Whether that means filing a motion to quash an ISP subpoena, whether that means we will recommend that we defend your case, or whether we settle the claims against you or simply convince the plaintiff attorneys that it was not you who did the download (no settlement representation), there are a number of options we could take to represent our clients in these cases.

Here are the cases:

UN4 Productions ISP subpoenas ordered in the Colorado District Court
[Most cases assigned to Judge Wiley Y. Daniel]
UN4 Productions, Inc. v. Doe 1 et al (Case No. 1:17-cv-01419, Case No. 1:17-cv-01477, Case No. 1:17-cv-01577, Case No. 1:17-cv-01253, Case No. 1:17-cv-01299)

UN4 Productions ISP subpoena ordered in the Hawaii District Court
… v. Doe 1 (Case No. 1:17-cv-00282)

UN4 Productions ISP subpoenas ordered in the Illinois Northern District Court
UN4 PRODUCTIONS, INC. v. DOES 1-22 (Case No. 1:17-cv-04865)
… v. DOES 1-25 (Case No. 1:17-cv-04868)
… v. DOES 1-21 (Case No. 1:17-cv-04866)
… v. DOES 1-18 (Case No. 1:17-cv-04863)
… v. DOES 1-23 (Case No. 1:17-cv-04861)

UN4 Productions ISP subpoenas ordered in the Indiana Northern & Southern District Courts
UN4 Productions, Inc. v. Doe 1 et al (Case No. 3:17-cv-00473, Case No. 1:17-cv-00257, Case No. 1:17-cv-00228, Case No. 1:17-cv-02037, Case No. 1:17-cv-02070, Case No. 1:17-cv-01710)

UN4 Productions ISP subpoenas ordered in the New York Eastern & Southern District Courts
UN4 Productions, Inc. v. Doe- et al (Case No. 1:17-cv-03621)
… v. Doe- et al (Case No. 1:17-cv-03278)
… v. Doe- et al (Case No. 1:17-cv-04817)

UN4 Productions ISP subpoenas ordered in the North Carolina Eastern District Court
UN4 Productions, Inc v. Doe 1 et al (Case No. 5:17-cv-00278, Case No. 5:17-cv-00286, Case No. 5:17-cv-00317, Case No. 5:17-cv-00232, Case No. 7:17-cv-00109)
UN4 Productions, Inc v. John Doe 1-12 (Case No. 5:17-cv-00238)

UN4 Productions ISP subpoenas ordered in the North Carolina Middle District Court
… v. DOES 1-10 (Case No. 1:17-cv-00502)
… v. DOES 1-10 (Case No. 1:17-cv-00528)
… v. DOES 1-12 (Case No. 1:17-cv-00444)
… v. DOE 1, et al. (Case No. 1:17-cv-00453)

UN4 Productions ISP subpoenas ordered in the North Carolina Western District Court
… v. Does (Case No. 3:17-cv-00295, Case No. 3:17-cv-00297, Case No. 3:17-cv-00315, Case No. 3:17-cv-00329, Case No. 3:17-cv-00282, Case No. 3:17-cv-00284)

UN4 Productions ISP subpoenas ordered in the Ohio Northern & Southern District Courts
… v. Does (Case No. 3:17-cv-01190)
… v. Does 1-11 (Case No. 5:17-cv-01185)
… v. Does 1-12 (Case No. 1:17-cv-00388)
… v. Does 1-11 (Case No. 2:17-cv-00492)

UN4 Productions ISP subpoenas ordered in the Oregon District Court
… v. Doe- (Case No. 3:17-cv-00721)
… v. Doe- (Case No. 3:17-cv-00722)

UN4 Productions ISP subpoenas ordered in the Pennsylvania Eastern District Court
… v. JOHN DOES 1-9 (Case No. 2:17-cv-02481)
… v. JOHN DOES 1-15 (Case No. 2:17-cv-02768)

UN4 Productions ISP subpoenas ordered in the Texas Southern District Court
… v. Doe 1 et al (Case No. 4:17-cv-01685)
… v. Does 1-13 (Case No. 4:17-cv-01788)
… v. Does 1-13 (Case No. 4:17-cv-01834)

UN4 Productions ISP subpoenas ordered in the Washington Western District Court
[Most cases assigned to Judge Robert S. Lasnik]
… v. Doe 1 et al (Case No. 2:17-cv-00892, Case No. 2:17-cv-00786, Case No. 2:17-cv-00785)

Defense Against the Dark Arts of Copyright Trolling, and its effects.


The purpose of this post is not to educate, but to share an experience I went through over the weekend.  I spent some time reviewing the various cases where John Doe Defendants have fought back, and the results (even when the attorney did a good job defending the case) were not what I expected.  And then it occurred to me that the Defense Against the Dark Arts of Copyright Trolling unmasks a problem with the bittorrent-based copyright infringement lawsuits — namely, that they will never end.

Defense Against the Dark Arts of Copyright Trolling (“DADA”) = Good & Bad

Professor Sag’s Paper (Defense Against The Dark Arts of Copyright Trolling) was meant to expose the extortion scheme that is behind each of the bittorrent cases we fight every day, and in hindsight, it did a lot of good, but it also did some bad.


The good it did was that it exposed and confirmed the suspicion that the same players have been (and continue to be) behind each of the lawsuits filed across the US.  Whether it is (Carl Crowell), APMC, or any of the other names or corporate shell entities working together and using the same German companies (Guardaley) and their so-called “experts” is irrelevant.  The scheme is the same, and this group of individuals who are soliciting movie companies and having them license the rights to sue for copyright infringement is the same, and the list of production companies who are signing onto copyright trolling as an effective method of making money from copyrights is growing.


The problem is that Sag’s Defense Against the Dark Arts of Copyright Trolling paper also emboldened the plaintiff attorneys, and it has inspired many of them to “legitimize” these kinds of lawsuits, almost as if “legitimization” is their new mission statement and credo.  Plaintiff attorneys I speak to all now speak about “changing the way so-and-so district court sees our kinds of lawsuits,” as if they have all been coached by the same individual or group working in unison to change how federal courts view copyright infringement lawsuits, in spite of their inherent weaknesses.

How the Defense Against the Dark Arts of Copyright Trolling paper affected the Cashman Law Firm, PLLC

Since Sag’s Defense Against the Dark Arts of Copyright Trolling paper has come out, our Cashman Law Firm, PLLC now offers the following services to accused defendants:

  1. Fight and defend in court
  2. Settle out of court
  3. Represent, but don’t settle (meaning, help the plaintiff attorney understand that my client did not do the download)
  4. “No Settlement” letter


This is the romantic option.  Have your victory in court and expose these guys for the scheming scum they are.  Vindicate the client, show the world they should not have been selected to be named-and-served defendants in the first place.


This is frowned on by everyone, except the defendant who decides that this is the cheapest option.  Our law firm settles cases too, and in many circumstances we have leverage when negotiating a settlement.  Contrast this with settlement factories (you know who you are), who scare defendants into settling even when they did not do the download.  These settlement factories appear to promise one set of settlements, get the client to pay their volume-based fee, and then hit the defendant with a higher settlement amount claiming it is the client’s fault the settlement was higher (when the ‘deal’ they had with plaintiff attorneys in the first place was this higher ‘premium’ amount they prearranged with the plaintiff attorney).  See here for details.


This is the preferred option for the innocent defendant who did not do the download.  I have called this mode of representation many things over the years, but the point of it is 1) to keep the plaintiff attorney far away from the defendant, 2) to keep an open line of communication between the plaintiff attorney and the defendant, and 3) to monitor the case so that the innocent defendant does not need to worry about the various filings, hearings, and documents that are filed in their case.  The ultimate goal of this “ignore” option is to inform the plaintiff attorney that my client was not the one that did the download, and to help him/her understand this by providing documentation and an open line of communication.  Eventually, the plaintiff attorney will need to decide whether to dismiss my client or move forward against him/her, but this will be based on the evidence, not based on bullying, threats, or coercion.  And if that becomes the circumstances, our firm is prepared to defend the client in the courtroom.

“NO SETTLEMENT” LETTER (as suggested by the Defense Against the Dark Arts of Copyright Trolling paper):  

This is the “no settlement letter” option suggested by Matthew Sag’s paper.  In the Defense Against the Dark Arts of Copyright Trolling, Prof. Sag suggested that the threat to name-and-serve a defendant if they do not settle is a *bluff*.  Counter the plaintiff attorney’s accusation with a denial letter sent by an attorney indicating that no infringement occurred, and that the client will not entertain a settlement.  The total representation should take 2-3 hours at most, but there is no ongoing representation — meaning, our firm is not monitoring the case, we are not interacting with the plaintiff attorney (only minimally, if necessary to substantiate something we wrote in the letter), and we are not spending time additional time arguing with the plaintiff attorney, or going back and forth on the evidence, or arguing the merits of the case — something that can cause the cost of defending a client to skyrocket.  This, according to the paper should provide the innocent defendant enough legal protection to inform the plaintiff attorney that they did not do the download and that they will not settle.[Should the client wish to have a more complete representation, we offer the “REPRESENT, BUT DON’T SETTLE” option, and we offer it as a flat fee service.]

Defense Against the Dark Arts of Copyright Trolling and the various paths of representation.
geralt / Pixabay

Prof. Sag’s Defense Against the Dark Arts of Copyright Trolling paper gave us direction.

I would say that the main benefit derived from Sag’s Defense Against the Dark Arts of Copyright Trolling paper is that the issues surrounding the mass bittorrent cases filed across the US have been defined.  The “lines in the sand” have been drawn, so to speak.  The scheme of the copyright holders has been revealed (I have not discussed the scheme or its details in this article).

We now know that the copyright holders are trying to prove that “snapshot” infringement is copyright infringement, whereas we look to establish that the “substantial similarity” standard of copyright law must be adhered to.  They look to prove that an IP address implicates the account holder while we look to prove that the IP address does not implicate the account holder (just to name a few points).

Sag’s Defense Against the Dark Arts of Copyright Trolling paper has shed a clear light on what case law needs to be established in each of the federal districts across the US.  This will take work, and it will take a number of years before we generate a consensus of law in each federal district.

The Defense Against the Dark Arts of Copyright Trolling paper also gave the copyright trolls direction.

The problem is that when a fraud is exposed, those committing the fraud double-down and get emboldened to prove that their side is right.  The copyright holders have a clear advantage over the defense counsel, as they have hundreds of lawsuits where they spew the same lines in every court trying to sway the judges to their side of the argument.  And, it costs them almost nothing to get their argument before a court.  However, for an individual defendant who hires a law firm like mine, we can only represent the defendants who come to our firm and choose to have us fight the case on their behalf (rather than settle or choose one of the other less confrontational options).

It is no secret that it costs more to defend a case in the courtroom than it does to settle it.  As a result, there are significantly fewer attorneys on our defense side who have the ability to get their arguments in front of the judges.  Rather, we are tasked with doing what is in the “best interest of our client,” and that is often to take active steps to avoid the costs of litigation.  So while we protect our client (one at a time), we are not the heroes who are slaying the copyright troll dragon.  And, while our Cashman Law Firm, PLLC does our best to starve the copyright trolls by avoiding settlements whenever possible (“no settlement” representation), copyright trolls do not require a lot of food to continue growing like a cancer.

The Defense Against the Dark Arts of Copyright Trolling paper’s suggested solution: Attorney Fees

The Defense Against the Dark Arts of Copyright Trolling paper suggested that attorneys such as myself should take my case pro bono (meaning, for free) or at a reduced rate so that we can get our attorney fees from the copyright trolls (those filing the lawsuits) rather than from the client.  His logic was that copyright law (in theory) allows a defendant to recoup attorney fees he paid to his attorney from the other side if he is successful in his defense (or more specifically, when the prevailing party gets a judgement “on the merits” of the case).

The problem is that even if the attorney is successful in fighting the case, the copyright trolls will dismiss their lawsuit against the defendant before he is able to get a judgement “on the merits.”  In other words, they deprive the successful defendant from obtaining attorney fees by dismissing the defendant as soon as they realize he has a winning case.

Counterclaims as a strategy to “lock-in” a copyright troll (to prevent dismissals)

Several accomplished attorneys have filed counterclaims trying to “lock in” the plaintiff attorney / copyright troll into the lawsuit, so that if they try to dismiss the defendant from the lawsuit, the defendant can still proceed on his counterclaims and collect the attorney fees he paid to his attorney when they win the case.  However, as glorious as a strategy as this is — and I credit the attorneys who thought of this strategy (and I am willing to share their names here if they allow me to) — to my own dismay, I have seen this strategy in practice fall on its face in a number of places.

My weekend.

This was the subject of my weekend research — reviewing cases filed across the US where the defense attorney filed a counterclaim against the copyright holder, and watching to see the plaintiff attorney try to squirm out of the counterclaim.  In some places they are successful and in some places they are not.  However, this is the disheartening reality I saw over the weekend — regardless of whether the plaintiff attorney succeeded in “locking-in” the plaintiff with his or her counterclaim, the judge months later still forced the parties to attend a settlement conference, and days later, a stipulation of dismissal was filed with the court indicating that the parties settled out of court.

“After all those months of fighting!” I thought.  I couldn’t believe it, but I saw it with my own eyes.  So, as glorious as it is to fight the case, I still see the cases settling out of court months or years later because neither party is willing to take the case to trial because of the costs involved.

In short, seven years later, the bittorrent lawsuits are still a “game of chicken.”  [Two cars drive at each other head on and full speed, and the first car to swerve out of the way loses.]  The game is still the same.  We’ve just had each side drive the metaphorical “car” deeper into the lawsuits.  Now plaintiff attorneys name-and-serve defendants.  Now plaintiff attorneys force accused defendants into discovery (forcing them to answer questions under oath via interrogatories, depositions, etc.) before dismissing them.  However, in the “olden days,” defendants did not need to pay any attention to the lawsuits.  Now the louses have figured a way to force defendants “neck first” into the litigation, so they are going to spend their hard-earned money either defending themselves or settling.

Defense Against the Dark Arts of Copyright Trolling and "Playing Chicken."
Netsyscom / Pixabay

The Grim Reality — More lawsuits are coming.

In sum, the ‘bad’ that Matthew Sag’s Defense Against the Dark Arts of Copyright Trolling paper did is that it exposed a harsh reality — that unless people fight back, these cases will prevail like a cancer on the court system, and many thousands more will be sued.   He also exposed that although the plaintiff’s case is weak, changing the minds of the judges en masse can only happen if people call the bluff of the copyright trolls and fight them on the merits of the case and oppose being dismissed when they are dismissed from the lawsuit.

If we want to see these cases disappear, we still have to fight the cases.  We need to file answers with the courts, and we need to expose the weaknesses of the cases to the judges.  Eventually, the plaintiff attorney will need to drop Guardaley or improve their tracking capabilities to remove accidentally implicating non-guilty defendants as John Doe Defendants in these cases.  They will need to do a whole slew of things which I can outline in another article when I have the time.  Most importantly, however, the issues surrounding the cases will need to be hashed out *in* the courtroom.  The cases will never go away until this happens.

What I found out this weekend is that even those who fight back eventually settle.  Whether the settlement is “plaintiff takes nothing,” who knows, but the cases all settle.

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