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.

    Why is the PCAP file (bittorrent evidence) missing from lawsuits?

    This will be the first in a number of ‘simple, to the point’ educational topics.  Over the past seven years, our law firm has explained and taught these concepts in the context of discussing one lawsuit or another, but here I am distilling the topic down to the subject alone.  This article will discuss why actual bittorrent evidence (the PCAP file) is missing from the case.

    WHY BITTORRENT-BASED COPYRIGHT INFRINGEMENT LAWSUITS ARE BASED ON NON-EXISTENT BITTORRENT EVIDENCE

    Copyright infringement lawsuits based on bittorrent activity accuses a defendant of a crime without that defendant being there ‘at the scene of the crime.’  The infringement happens at a computer, and the ‘crime’ occurs in cyberspace (over the internet).

    Any evidence linking the defendant to the actual downloading is circumstantial.  This means that a plaintiff attorney needs to use technology to prove the bittorrent evidence, namely, that the defendant’s computer or phone connected to a particular server or some virtual ‘room’ where multiple computers got together to share a copyrighted file, AND THAT A WATCHABLE PORTION OF THE FILE WAS DOWNLOADED.

    However, simply proving that an accused account holder was “in the room” is NOT SUFFICIENT to prove that copyright infringement (the download) actually happened.

    Bittorrent Evidence is in the PCAP file

    One method of proving innocence is documenting that the accused defendant was not at the keyboard when the ‘crime’ was committed.  However, there is better evidence to prove one’s innocence — whether or not the download (and thus copyright infringement) actually happened.

    What is sufficient bittorrent evidence to prove actual infringement?

    Actual bittorrent evidence can be found in what is called the “PCAP file.”  This file lists whether 2% of the movie was transferred, or whether 100% of the movie was transferred.  

    Surprisingly, instead of producing this PCAP file as bittorrent evidence, plaintiff attorneys rely on circumstantial evidence — namely, “the John Doe Defendant’s IP address was connected to the bittorrent swarm at that date and time, so he must be the infringer.”  However, proving the defendant was ‘in the room’ (that his computer was connected to the bittorrent swarm where infringement happened) does not mean that he copied the file.

    Because there is only a murky and circumstantial connection between the ‘scene of the crime’ and the accused defendant, it is easy for an unscrupulous attorney to assert the existence of bittorrent evidence and accuse someone of copyright infringement without having done research to prove that it was the defendant who actually did the download.

    HOW CAN A DEFENDANT BE ACCUSED OF COPYRIGHT INFRINGEMENT WHEN HE DID NOT DO THE INFRINGING ACTIVITY (E.G., HE DID NOT DO THE DOWNLOAD)?

    Technology can be misused by savvy internet users to mask their identity, or to make their activity look as if it was being done by another person or another computer connection (e.g., changing the MAC address of a computer, or spoofing the IP address to look as if your computer has someone else’s IP address).  

    These individuals have more of a proclivity to commit crimes, and often it is the individual having that actual IP address assigned to him that gets accused of the crime committed by the individual who spoofed his IP address.

    WHEN ARE SETTLEMENTS ETHICAL, AND WHEN ARE THEY CONSIDERED EXTORTION-BASED COPYRIGHT TROLL ACTIVITIES?

    Going back to the plaintiff attorneys, the copyright infringement attorneys know that it will cost them many tens of thousands of dollars (sometimes hundreds of thousands of dollars) to take the lawsuit all the way to a trial.  

    For this reason, they ask the defendant to settle the claims against them for multiple-thousands of dollars claiming it will also save the defendant multiples of that amount to fight the case.  There is nothing wrong with this, and this sort of settlement activity happens all the time.  

    A REASONABLE SETTLEMENT is the amount the copyright holder should expect to get if they proceeded with the lawsuit balanced with the time saved by settling without the need or expense of costly litigation.

    An attorney becomes called a “copyright troll” when they unethically start eliciting settlements not knowing or caring whether the individual they accused of copyright infringement actually did the ‘crime’ or not.  

    That attorney will often threaten that he will run up litigation fees and destroy the financial life of the defendant (“I will take your house or force you into bankruptcy”) if they do not pay the exorbitant amount the plaintiff attorney is asking for.

    It is also the belief of the author that filing “John Doe” copyright infringement lawsuits against individual bittorrent users is unethical in itself.  The attorney filing the lawsuit is not doing so in order to protect the rights of the copyright holder, nor does that attorney have an intent to bring the lawsuit to trial.  Rather, they file the lawsuits to ‘monetize’ the copyrights (meaning, they take money from the bittorrent users as a model of rewarding the copyright holders).

    This would be fair if the accused downloader were asked for the ACTUAL DAMAGES they caused the copyright holder (ACTUAL DAMAGES is the measurement of the actual loss to the copyright holder based on the defendant’s unlawful activities, for example, the loss of a sale of a movie ticket or DVD, plus the costs of the copyright holder in recovering the lost sale, e.g., the $400 filing fee for the lawsuit plus the attorney fees involved in recouping the losses), but this is not what copyright holders ask for.  

    Instead, they ask for exorbitant settlement amounts — sometimes thousands or tens of thousands of dollars — under the threat of pursuing the downloader for the full $150,000 statutory damages it is entitled to ask for in a lawsuit.

    (STATUTORY DAMAGES are damages determined by law which are awarded to copyright owner who proves copyright infringement, regardless whether actual damages occurred).

    This activity is commonly called “copyright trolling,” and consequently, attorneys who file serial copyright infringement lawsuits and their copyright holder movie companies are called “copyright trolls.”


    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.

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