Does Culpepper IP want to attack the ISPs next?

Culpepper Served Defendants

I have been speaking to a number of accused defendants who are pretty shocked about Kerry Culpepper’s most recent lawsuit in Colorado. Likely to prove that Culpepper IP’s YTS settlement demand e-mails actually have “teeth,” Kerry Culpepper of Culpepper IP has not only sued defendants for the copyright infringement of his movie clients’ copyrighted movies, but now he has named and served them as well.

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ANONYMITY

It is one thing to sue an accused defendant as a “John Doe” defendant. As a John Doe Defendant, the accused defendant is still anonymous. Yes, he is receiving ISP subpoena notification letters from his ISP, but the world does not yet know that he has been accused of software or movie piracy.

The “Anonymous” John Doe

As a John Doe… an ANONYMOUS John Doe, he can still interact with the plaintiff attorney (obviously better and smarter to have an attorney do it). He can have his attorney argue the legal points, he can argue whether he actually did the downloads or not, he can even negotiate a settlement of the claims against him… all while being an ANONYMOUS* John Doe.

Dangers of “Anonymous” Settlements with IP-based Lawsuits

NOTE: It’s probably a good idea to take mention that an accused John Doe Defendant is merely mentioned by his accused IP address <– the IP address his internet service provider (ISP) assigned him for the 24-48 hours that they leased that IP address to him. The danger in settling anonymously is that some copyright attorneys attempt to phrase an “anonymous” settlement as being “John Doe Subscriber assigned IP address 108.124.24.4,” meaning, one accused IP address only. If an accused downloader is a regular movie downloader, he likely has OTHER IP ADDRESSES that were assigned to him.

I wrote about “Anonymous Settlements” and in my “3 Reasons Why an Anonymous Settlement is a Bad Idea” article in September, 2020.

[While that article referenced Strike 3 Holdings, LLC lawsuits, the topic of “anonymous settlements” is still very relevant.]

It goes without saying that common sense, settling the claims against you for ONE IP ADDRESS ONLY does not automatically settle ALL claims against you for ALL IP ADDRESSES you ever had. This is something that an attorney should negotiate in an agreement (obviously using the correct terminology).

The danger of settling anonymously is that the plaintiff attorney can take your money, say thank you, and then turn around and ask for another settlement for another movie title that you downloaded. This unending spiral of events could frustrate anybody. Obviously your attorney should be aware of the ONE IP ADDRESS PROBLEM and he should consider it in his settlement release of liability.

Kerry Culpepper’s Colorado Lawsuit… where he named and served his defendants.

So back to Kerry Culpepper and his movie lawsuits. As you can see from this screenshot, Kerry Culpepper sued on behalf of Fallen Productions, Inc. for the unlawful download of their “Angel Has Fallen” movie. Pictured below is is recent Fallen Productions Inc. v. Does 1-17 (Case No. 1:20-cv-03170) lawsuit filed in the U.S. District Court for the District of Colorado (federal court).

031721 Culpepper IP Colorado Fallen Productions Lawsuit
Fallen Productions Inc. v. Does 1-17 (Case No. 1:20-cv-03170) filed in the District of Colorado

If you notice, Fallen Productions Inc. was included at the top of the list of another lawsuit he filed last year [2020] in the Hawaii federal court (see, Fallen Productions, Inc. et al. v. Harry B. and DOE Defendants, Case No. 1:20-cv-00004).

culpepper-ip-fallen-productions Culpepper IP and his Fallen Productions Inc. Colorado Lawsuit
Fallen Productions, Inc. et al. v. Harry B. and DOE Defendants (Case No. 1:20-cv-00004)

Copyright Trolls

I am not calling all movie companies who sue for the unlawful download, streaming, or viewing of their copyrighted movies “copyright trolls,” but when there is a pattern of lawsuits — all by a specific movie company, or as I have written about before, a conglomerate of movie companies — you must raise the question of whether this company is trying to legitimately enforce their copyright rights, or whether they are trying to make a quick “multi-thousand-dollar settlement” from each defendant… just as a copyright troll would.

Rob Cashman, Author, and owner of the Cashman Law Firm, PLLC.

Why Culpepper’s Lawsuits are Different

But again, Kerry Culpepper’s movie lawsuits are different… not because they are asking for multi-thousand-dollar settlements from each accused defendant (they are), but because of what Kerry Culpepper wants.

Kerry Culpepper does not appear to be interested in the money. Yes, a few thousand dollars sounds like a lot of money for his clients (and it is).

But it is starting to appear to me that Culpepper IP is more interested in going after the ISPs and the VPN providers. Why? Because it is the SAFE HARBOR IMMUNITY given to ISPs that I believe he is trying to break.

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ISP DMCA Safe Harbor Rules

Under the Digital Millennium Copyright Act (DMCA) “safe harbor” rules, ISPs have not been liable for infringing traffic (e.g., movie downloads) that happen on their network.

Obviously each ISP has in its terms of service (TOS) that using their network for copyright infringement is reason for the ISP to terminate that account holder’s ISP internet account. But to my awareness, they rarely [if ever] cancel their customer’s account for violations of the terms of service when that account holder downloads or streams a movie from an unauthorized website.

Why I believe Culpepper IP want to get around the DMCA Safe Harbor Rules

I understand that Kerry Culpepper is looking to circumvent the safe harbor rules and he wants to force the ISPs to cooperate with his requests.

He likely wants to do this without him needing to go to the federal court and file a “John Doe” copyright infringement lawsuit every time he learns that “some guy did something.”

Really, I understand that he just wants to contact the ISP and have them disclose the real identity of the account holder… without lawsuits… without subpoenas… without Hawaii Rule 521(h) lawsuits… and without going to court at all.

Why do I think this? Because [among other reasons I am still confirming], in his questionnaire to accused internet users, he asked, “whether or not your ISP sent you any warning notices concerning infringing activity.”

^^^ Why would he ask this? ^^^

[In Culpepper IP’s YTS e-mails], his $950 settlement demands are not merely, “pay me and I’ll decide not to sue you in federal court for copyright infringement.” No. Rather, with his settlements, he is asking accused internet users to provide a signed declaration detailing:

1) “which BitTorrent client you used to reproduce the motion picture;”

2) “which website or business promoted the BitTorrent client to you;” and

3) “whether or not your ISP sent you any warning notices concerning infringing activity.”

Reference: “The Truth about why Culpepper IP is sending settlement demand EMAILS to YTS users,” written on 9/16/2020.

What does Culpepper demonstrate from the Fallen Productions Inc. Colorado Lawsuit?

In this lawsuit in Colorado, you see that after some initial pushback from the judge on PERSONAL JURISDICTION issues, Kerry Culpepper first dismissed a few defendants (presumably those who settled), and then he turned around and NAMED AND SERVED a handful of defendants.

What can we take from this? What can a judge take from this? That Kerry Culpepper is not interested in the John Doe. He is not interested in their money. He is not even interested in their alleged infringement of his movie clients’ movies.

My thought: He wants their DATA to go after BIGGER FISH.

Again, why would he ask the three questions in his e-mail YTS settlement demand e-mails? Because Kerry Culpepper wants to look past the defendants and go after his real target — the ISPs who allow their subscribers to download films and movies on their internet networks in violation of the copyright holder’s copyright rights.

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And, Culpepper still wants “LAWFARE.”

“LAWFARE”

Understanding that Kerry Culpepper is engaging in “lawfare” (legal war) against piracy-based websites, we at the Cashman Law Firm, PLLC suggest that Culpepper is using these $950 settlement demand e-mails to build a portfolio of evidence against the piracy-based websites.[“Lawfare” is defined as using legal systems and institutions to achieve a goal. It can be the misuse of legal systems and principles against an enemy, such as by damaging or de-legitimizing them.]

Earlier this month, I wrote an article entitled, “Why Culpepper IP Is Engaging In A Takeover Of The Piracy Trade Names,” where I suggested that Kerry Culpepper is filing piracy-based trademarks as his own for the purpose of literally taking the domain names (and consequently, their traffic from the millions of internet users who visit their pages every day) and using it for his own purposes.

Reference: The Truth about why Culpepper IP is sending settlement demand EMAILS to YTS users, written on 9/16/2020 (link).

Remember also Culpepper IP’s trademark “lawfare” on Piracy Trade Names

Also, let’s not forget about why I believe that “Culpepper IP Is Engaging in a Takeover of the Piracy Trade Names.”

Again, I am just reporting here. Yes, I am aware of the hundreds, maybe thousands of accused individuals who received e-mails directly from Culpepper IP (now, no longer from Joshua, but from I believe a “Stephanie” <[email protected]>).

I still think that Culpepper has a bigger plan, and that plan is NOT the settlement or the John Doe Defendant.

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What should I do if I am NAMED AND SERVED as a defendant?

To the accused downloaders of Kerry’s Colorado case — what should you do? Well, he NAMED AND SERVED you. This means that you are no longer a “John Doe Defendant,” but you are now a “Named and Served” Defendant.

I have written a “walkthrough” article on what to do once you are named and served. I called it, “NAMED AND SERVED AS A DEFENDANT.

And for reference, this is article very different from the other “walkthrough” article I have written on what to do when you are accused of being a John Doe Defendant.

I didn’t call that one “SUED AS A JOHN DOE” (as I probably should have):
“ISP SUBPOENA NOTIFICATION RECEIVED FOR DOWNLOADING MOVIES.”

The point is — once named and served [as the defendants from the Colorado court were] — you are accused of copyright infringement for downloading one or more movies without a license.

Whether you like it or not, you are now “in litigation,” which means that you have procedural deadlines and responsibilities according to the Federal Rules of Civil Procedure (F.R.C.P) on what you must do next before you miss the deadline to file an answer with the court and Culpepper asks the court for a judgement against you.

Obviously, you can contact me at the Cashman Law Firm, PLLC if you have any questions.

If for some reason I won’t take you as a client, I will still happily spend time with you on the phone to answer your questions.

I will happily also refer you to an attorney in your state who is competent to represent you in this case. I have never taken a referral fee, but I still believe that even if I can’t help you — at the very least, I do my best to put you in the hands of an attorney who can help you.

And obviously I’ll lead you far away from the “settlement factory” attorneys I have written about more times than I can count.

-Robert Z. Cashman, author and owner of the Cashman Law Firm, PLLC

Public Policy Letter to Judges on Copyright Issues

Lastly, it has been quite a while since I’ve revisited the “Public Policy Letter to Judges” article that I wrote in 2012, but I wanted to take a moment and mention that this letter has been sent to judges across the US… not only by me, but by many activist individuals who have an interest in keeping copyright trolls out of the federal courts.

While the “copyright troll” lawsuits have changed somewhat since we wrote that in 2012, the copyright laws themselves and the “uneven playing field” that I describe in this letter (this link is a .pdf attachment) is still very real, and very valid.

Now, as I did almost TEN YEARS AGO, I invite you to make this letter your own and to inform judges about the problems with copyright attorneys who sue John Doe defendants for the purpose of extracting a quick settlement. You do not need to be a defendant to send this letter.

And as always, e-mail me or contact me if I can be of assistance to you.

[To follow-up on this article and see what else I have written on Kerry Culpepper, the easiest way is to simple do a search on my TorrentLawyer website for Culpepper IP and see what articles show up.]

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[CONTACT AN ATTORNEY: If you have a question for an attorney about what I have written here (or if you have received one of these settlement demand e-mails), you can e-mail us at [email protected], you can set up a free and confidential phone consultation to speak to us about your case, or you can SMS/WhatsApp 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.

    3 Reasons Why a Strike 3 Holdings Anonymous Settlement is a bad idea.

    strike-3-holdings-anonymous-settlement-vixen-blacked-tushy-deeper

    STRIKE 3 HOLDINGS ANONYMOUS SETTLEMENTS, BUYER BEWARE.

    The purpose of this article is to specifically discuss the prospect of a Strike 3 Holdings Anonymous Settlement. A Strike 3 Holdings lawsuit targets users based on bittorrent activities tracked over a long period of time. Strike 3 Holdings copyright infringement lawsuits are filed with a federal court, Strike 3 Holdings subpoenas are sent to ISP subscribers, and after realizing that filing a motion to quash might not be the best option, deciding whether to negotiate a settlement or to fight becomes the main consideration.

    Strike 3 Holdings settlements are very expensive — not because they ask for a lot of money for the bittorrent download of one of their copyrighted adult films, but because they ask for the settlement of EACH AND EVERY ONE OF THE STRIKE 3 HOLDINGS MOVIES YOU MAY HAVE DOWNLOADED OVER THE COURSE OF YEARS.  Thus, instead of asking for a settlement of, say, $3,500 for the download of one copyrighted video (as other copyright holders do), they’ll ask for a settlement of ALL 50 MOVIES they claim you downloaded over the last three (3) years.  This article will go into the various pitfalls a defendant may face when being lured into a Strike 3 Holdings anonymous settlement.

    NOTE: BEFORE READING THIS ARTICLE: If you have not already done so, and you are implicated as a John Doe in a Strike 3 Holdings, LLC lawsuit, read these first:

    1. ISP Subpoena Notification Received – WALKTHROUGH.”
    2. Strike 3 Holdings, LLC — JUST THE FACTS.”
    3. “Everything You Need To Know in One Page About Your Strike 3 Holdings Lawsuit [FAQ]”
    4. “In-Depth Strike 3 Holdings.  Their Lawsuits, Their Strategies, and Their Settlements”

    FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your Strike 3 Holdings, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

    strike-3-holdings-anonymous-settlement

    Strike 3 Holdings’s list of “movies infringed” is often INCOMPLETE (and for a reason).

    If you choose to fight and defend the claims against you, they have ‘slick tricks’ built into their lawsuits.  They file their lawsuit alleging copyright infringement of only one (1) video, and they list (for example,) the fifty (50) videos they claim you downloaded over the years.  However, they hold back information from the court and they do not list the newest Vixen / Tushy / Blacked / Deeper. videos you have downloaded in the recent months.  Thus, if the lawsuit was filed in July, 2020 they’ll only list downloads you participated in until February, 2020.  This leaves all of the Strike 3 Holdings downloads you participated in between February 2020 – July 2020 off of the lawsuit.

    Why would they do this?  Because they know that when you start fighting your case, you might dispute a number of their claims.  You might even go line-by-line and claim that they did not follow the copyright laws in protecting their rights (e.g., Strike 3 Holdings has consistently fudged the ‘publication’ requirement, as I have fought with them on this topic in the past).  However, whether you are right or wrong, they always keep “extra ammunition” of other Strike 3 Holdings, LLC (Vixen / Tushy / Blacked / Deeper.) titles you downloaded as a threat against you fighting them on the merits.  For example, they might say “If you argue that this list is not accurate, we actually have many more titles we believe you have downloaded — we can list these too if you would like.”

    Obviously it is more complicated than this, but point being, I have seen that Strike 3 Holdings LLC lawsuits always keeps some set of information ‘off of the table,’ and they reserve this information to gain additional leverage when an inexperienced attorney tries to fight them on the line-by-line details of their case (which, by the way, is often flawed or contains copy-and-paste mistakes from other lawsuits).

    Strike 3 Holdings anticipated anonymous settlements and built in a way to re-sue defendants who settled.

    Now as far as an anonymous settlement, Strike 3 Holdings lawsuits are ‘slick’ here too.  Their lawsuits do not implicate you, a “John Doe” defendant, who has had many IP addresses over the past few years.  Rather, they implicate only “John Doe, subscriber assigned IP address 172.2.51.244,” a John Doe defendant who has been assigned a specific IP address on one day.

    IP addresses are assigned to internet users when their router connects their computer to the internet.  That IP address does not belong to that internet user; rather, it is “leased” to that internet user for a limited time, usually 24 hours, 48 hours, or until they reboot their modem or otherwise obtain a new IP address.  Thus, the IP address you have today might not be the same IP address you had yesterday, and so on.  Now IP addresses are pulled from a limited pool of addresses, so a particular internet service provider (“ISP”) might assign the same IP address to a customer for a few days in a row, but that IP address does not belong to that internet user.  If it did, it would be called a “static IP address” which is significantly more expensive than the residential “dynamic IP addresses” leased to residential ISP customers.

    Why is this relevant to you, the person behind the John Doe, subscriber assigned IP address 172.2.51.244 title?  Because IF you settled anonymously, you would be settling as John Doe, subscriber assigned IP address 172.2.51.244, and not as the John Doe Defendant having had many IP addresses leased to him.  Thus, Strike 3 Holdings, LLC could easily take your $12,000 settlement payment, say thank you, and then sue you again under a different “John Doe, subscriber assigned IP address [SOMETHING ELSE]” for this same set of movies allegedly downloaded.  If you settled anonymously, your attorney would have ‘unwittingly’ opened you up to this problem, because John Doe subscriber assigned IP address X is a different fictitious legal entity than John Doe subscriber assigned IP address Y.  This sounds like semantics, but buyer beware.

    In sum, beware of the settlement factory attorney who tries to convince you to settle the claims against you “anonymously.”

    Strike 3 Holdings anonymous settlement “price gouging.”

    Further, Strike 3 Holdings anonymous settlements give the Strike 3 Holdings attorneys an opportunity to price gouge their settlement prices.  Why?  Because an attorney who comes to them asking them to settle anonymously (without disclosing to Strike 3 Holdings the identity of the defendant) prompts the Strike 3 Holdings attorney to inquire why that defendant wants to settle anonymously.  “What does he have to hide?,” they ask.  Immediately upon learning that the accused defendant wants to settle anonymously, they recognize that the defense attorney has lost all leverage in negotiating the settlement price, and they’ll “spike” the cost of the settlement.  “Anonymous settlements come at a price,” they may say.

    strike-3-holdings-anonymous-settlement
    pedrofigueras / Pixabay

    Attorneys Advocating “Anonymous Settlements” are Deceiving You.

    Thus, it is important to understand the mechanics of a settlement before jumping to ask for an anonymous settlement.  What most accused Strike 3 Holdings defendants do not realize is that the settlements ARE ALREADY ANONYMOUS [with minimal tweaking] without the defendant having to ask for it.  A diligent attorney will negotiate a confidentiality clause into the settlement agreement (or strengthen one that is already in their boilerplate settlement agreement) to prevent their attorneys from disclosing the identity of the defendant with anyone.  This means that your attorney can (and should) put your name in the settlement agreement itself.  This avoids the entire John Doe, subscriber assigned IP address [SOMETHING] issue, because it is actually the real person (not the fictitious John Doe legal entity having a particular IP address) who is settling.

    Rather than taking the effort to actually negotiate the terms of the agreement, your settlement factory attorney will try to convince you that you won’t suffer if you try to settle anonymously.  This not only alleviates them of the need to negotiate the terms of the agreement, but it also allows them to use their “turn key” boilerplate e-mails, which the plaintiff attorneys (who have already agreed to a pre-arranged inflated settlement price) already know and recognize, so that they can ‘spike’ the settlement amount, gouge the settling defendant, and charge higher prices.  I won’t go into the dishonest attorney issue, kickbacks, etc., as I have written about these issues before.

    Once an accused Strike 3 Holdings defendant realizes that it is okay to allow his attorney to put his name in the settlement agreement, at that point, the Strike 3 Holdings settlement agreement itself covers 1) ALL PAST ACTS OF COPYRIGHT INFRINGEMENT regarding 2) ALL OF STRIKE 3 HOLDING’S TITLES, and based on the wording of the CONFIDENTIALITY CLAUSE in the agreement the settlement truly becomes a “Strike 3 Holdings anonymous settlement.”  Let’s look into this one level deeper, just to be sure that we have also solved the other ‘slick tricks’ Strike 3 Holdings lawsuits have built into their cases.

    1) “ALL PAST ACTS OF COPYRIGHT INFRINGEMENT”

    Because the settlement agreement containing the name of the accused defendant (and not the so-called ‘anonymous’ fictitious John Doe entity), the settlement will cover “ALL PAST ACTS OF COPYRIGHT INFRINGEMENT.”  This means that the settlement will cover even those downloads that Strike 3 Holdings, LLC purposefully “left out” from the list of infringements filed with the lawsuit.  Further, the Strike 3 Holdings settlement agreement WILL EVEN THOSE DOWNLOADS MADE BY A “John Doe, subscriber assigned IP address” HAVING AN IP ADDRESS WHICH IS DIFFERENT FROM THE “John Doe, subscriber assigned IP address” IMPLICATED AS THE DEFENDANT IN THIS CASE.  In other words, by negotiating the terms of a Strike 3 Holdings settlement, but having the confidentiality clause protect the client’s identity, the settlement agreement having the client’s real name on it will not only be a true Strike 3 Holdings anonymous settlement, but it will also cover any other fictitious “John Doe” entity that could have downloaded any of Strike 3 Holdings movies, ever.

    2) “ALL OF STRIKE 3 HOLDINGS’ TITLES”

    Strike 3 Holdings settlement agreements used to be very specific as to which specific Strike 3 Holdings titles were being settled, and the settlement used to cover ONLY THOSE TITLES and no other titles allegedly downloaded.  This was back when the Patrick Collins, Inc. v. John Does 1-1000 cases were still being filed.  Immediately we recognized that this limitation of the scope of the agreement to ONLY THOSE KNOWN TITLES DOWNLOADED exposed the client to multiple lawsuits for 1) Strike 3 Holdings movie titles that Strike 3 Holdings ‘slickly’ left out of their list, or 2) Strike 3 Holdings titles which their investigators missed.  Thus today, when we negotiate a Strike 3 Holdings settlement, the settlement necessarily includes ALL PAST ACTS of copyright infringement FOR ALL OF STRIKE 3 HOLDINGS’ MOVIES.

    In sum, when dealing with a copyright troll such as Strike 3 Holdings, LLC, and you see that they do something innocuous such as changing the lawsuit names from “Strike 3 Holdings, LLC v. John Doe” to “Strike 3 Holdings, LLC v. John Doe subscriber assigned IP address 214.42.955.8,” realize that THEY HAVE DONE THIS FOR A REASON.

    What else can you tell me about the Strike 3 Holdings cases?

    [2020 UPDATE] The best way to learn about Strike 3 Holdings, LLC is to read what happened to them as it happened.  The list of stories below (in the order I listed them) tell the Strike 3 Holdings story in a way that you will understand them.

    The easiest way to do this is to click on the Strike 3 Holdings CATEGORY link [here], and read what articles I have written on Strike 3 Holdings and their recent activities.


    FOR MORE INFORMATION ABOUT STRIKE 3 HOLDINGS, LLC: Again, if you have been implicated as a John Doe defendant in a Strike 3 Holdings, LLC lawsuit, there are TWO (2) main articles you should read immediately:

    1. ISP Subpoena Notification Received – WALKTHROUGH.”
    2. Strike 3 Holdings, LLC — JUST THE FACTS.”
    3. “Everything You Need To Know in One Page About Your Strike 3 Holdings Lawsuit [FAQ]”
    4. “In-Depth Strike 3 Holdings.  Their Lawsuits, Their Strategies, and Their Settlements”

    FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Strike 3 Holdings, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info[at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

    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.

      Book a Phone Consultation with a Cashman Law Firm Attorney

      When is it too late to hire a lawyer in a John Doe lawsuit?

      ISP Subpoena Timeline & Anonymity Timeline

      The best time to hire an attorney in a “John Doe” copyright infringement lawsuit is when you receive a subpoena notice from your ISP.

      Even if you are not planning on filing a motion to quash, this is a copyright infringement case, and you need time to prepare for what will happen should you be named and served.

      Hiring an attorney while you are still a “John Doe” gives you plenty of thinking time to get your affairs in order (for example, managing your online reputation by adjusting privacy settings on your social networking sites), and it gives you time to get your financial affairs in order.

      DO NOT WAIT TO HIRE AN ATTORNEY UNTIL AFTER THE ISP HANDS OVER YOUR INFORMATION TO YOUR PLAINTIFF ATTORNEY.

      There are a lot of things that you can accomplish before your ISP hands out your information.  You are anonymous at this point, and you can take advantage of that anonymity.

      If you want to negotiate a truly anonymous settlement, when you receive your subpoena notice from your ISP is the time to do it.  The plaintiff attorney has done almost no research on your John Doe entity, and thus the settlement amounts will be low because there are no legal fees the attorney will want to add to the settlement amount to be paid for time spent trying to proceed against you.

      Also, if your attorney is successful in negotiating an anonymous settlement (this may or may not be a good idea; talk to me and I’ll explain why), the benefit of doing it now when nobody knows who you are is that your plaintiff attorney will cancel the subpoena as to your John Doe entity once the settlement is complete.  That way, even he won’t ever know who you are (and thus you won’t have to worry about follow-up lawsuits, or the ‘copyright troll’ attorney asking you for more money later on, etc.).

      ABSOLUTELY DO NOT WAIT UNTIL YOU ARE NAMED AND SERVED AS A DEFENDANT IN THE LAWSUIT.

      Once you are named as a defendant in the lawsuit, your “John Doe” status is over, as is your anonymity.  Not only will the court know who you are, but at this point, the INTERNET will know who you are.  Forever, spiders and crawlers who search and index the legal sites and the lawsuit sites will index your name as being implicated as a defendant in that particular lawsuit.

      Even if you settle the case, your reputation will be forever tarnished.

      Even if you fight the case AND WIN, your reputation will forever be tarnished.

      Once you are named and served, you have a ticking time bomb deadline waiting around the corner, where you will be forced to file an “Answer” with the court, or else you will be in DEFAULT.

      Trying to negotiate a settlement after being named and served is like trying to negotiate with a gun to your head.  It is doable (and we have done it many times), but there is NO LEVERAGE.  The plaintiff attorney at this point is emboldened because there is nothing that he needs to do except wait.  He is under no pressure to negotiate at this point, because the law gives his client statutory damages if the infringement is willful.  Even if his client does not get the $150,000 statutory damages jackpot, if the named defendant defaults and the court awards minimum damages ($750), because the plaintiff attorney is the prevailing party, he will be awarded his attorney fees (which in most cases will be over $2,000 — higher than the commission he would have received had he accepted a settlement from you).

      THUS, THERE IS A FINANCIAL INCENTIVE FOR THE PLAINTIFF ATTORNEY *NOT* TO SETTLE AFTER NAMING AND SERVING A DEFENDANT

      Lastly, if you hire an attorney after you are named and served, practically, the attorney will be under pressure to get everything in order and filed before the deadline.  Please do not do this to your attorney.

      We do not do this, but most attorneys will charge a premium or a higher hourly rate if there is a “days to a default” deadline associated with the work to be done.  The reason for this is that the attorney will need to drop whatever he is already working on and throw your case to the front of the pile (usually at the cost of accepting other business).

      If you hired an inexperienced attorney after being named and served, the work you will get in return for the money you paid will be lower quality, because the attorney will not have the time to research the best legal strategies, arguments, or defenses available to your case, and in copyright infringement lawsuits, your defenses need to be raised in your answer or else you waive them.

      For these reasons, for your own sanity, for your lawyer’s sanity, and for your own benefit — please DO NOT wait until you are named and served before hiring an attorney.  Do it immediately when you learn about the lawsuit from your ISP.


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

      FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your matter, click here.  Lastly, please feel free to e-mail me at [email protected], or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

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

        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.

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