Why Being Served in a Bittorrent Case Can Lead To Settlement

Bittorrent ‘John Doe’ Defendants are being forced deeper into copyright infringement lawsuits. Being served can backfire on a troll forcing a cheap settlement.

DISCLAIMER: In this article I speak a lot about plaintiff attorneys cheating their own copyright holder clients, billing them “by the hour” (rather than the conventional method of accepting the copyright holder clients “on contingency”), and in some cases, wasting time to generate additional billing to their own clients.  It is my observation and opinion that this is happening, but short of a lawsuit like we saw with the Dallas Buyers Club copyright holders against their Voltage Pictures licensee, it is difficult to prove that such things are taking place.  However, “honor or dishonor among thieves” is not the topic or the point of the article — the point of the article is that plaintiffs are dragging defendants further into the federal lawsuits by naming and serving them, and it is my opinion that it is still possible to obtain a settlement, even after a client has admitted guilt in an answer to a deposition question.

It is a sad day when trolls force those they’ve accused to become legal experts and to stick their toes into the federal courts to defend themselves. In the attached article, DTD is correct that lawyers (myself included) can get expensive, and defending a case (e.g., answering a complaint, showing up and defending a deposition, answering the various requests for information that are required in a federal lawsuit, etc.) is often more expensive than simply paying a copyright troll plaintiff a few bucks to make them go away.

Unfortunately (at least in my Texas Southern District federal court), the copyright-troll attorneys appear to be billing their copyright-holder clients BY THE HOUR (which differs from the old model of a plaintiff attorney agreeing to take a case on contingency and only sharing in the settlement profits believing [the lie] that “they’ll make millions going after John Doe Defendants”), so these ‘hardened’ plaintiff attorneys seem to be running-up the bill by dragging the defendants through the mud — naming them, serving them, filing documents, and wasting everyone’s time.

In short, while I agree that IN NORMAL CIRCUMSTANCES doing what DTD suggested (filing an answer with the court and fighting your case) would normally not be something one would ever dare do [at least without a lawyer holding his/her hand, or sitting in and defending a deposition], in today’s evolution of the bittorrent cases, filing an answer and at least being willing to endure the legal process until a settlement is offered (and a settlement is usually offered eventually) has become a necessity.


Let’s take a quick example.  In the typical scenario, the goal in representing a client who wants to settle is to contact the plaintiff attorney on the client’s behalf and negotiate a settlement.  For a plaintiff attorney who is billing his copyright troll client by the hour (as is what appears to be happening in the Texas bittorrent-based copyright infringement cases), agreeing to a settlement is too easy of an outcome because the plaintiff attorney does not make the kind of money he could make “dragging the defendant through the mud while charging his client hourly to do so.”  (Remember, as we saw with the Voltage / Dallas Buyers Club cases, a crooked attorney steals not only from his victim [the accused defendant], but also from his client (as we saw in the Voltage / Dallas Buyers Club cases where Voltage was sued for failing to pay Dallas Buyers Club monies earned and owed to it through its copyright enforcement activities)).

More likely than not, the plaintiff attorney’s client (the actual copyright holder seeking to “monetize” or “enforce” the rights given to him via his copyright) is not aware that the attorney is over-billing (e.g., engaging in such “mud-dragging”, “revenue-producing” activities often cannot be proven, and thus it continues until the copyright holder gets tired of paying his attorney’s bill).  Thus, free of scrutiny from his client, the plaintiff attorney needlessly exacerbates the situation by demanding from the defendant something unreasonable (e.g., that unless the defendant is willing to agree to sign an explicit admission of guilt prior to being made aware of the kind or amount of settlement he will be offered, there will be no settlement).  [FYI, this is something no sane person would agree to.]  As a result, the defendant refuses to admit guilt, he gets named and served, and he is forced to spend thousands of dollars more to defend himself.  Why?  Because his plaintiff attorney figured out a way to milk not only him (the defendant), but his copyright-holder client as well.

There are a number of steps that happen after being named and served, but the point is that eventually, the plaintiff attorney is going to schedule a deposition (where the defendant will need to answer questions “under oath,”) and the defendant is going to tell the truth about what happened.  If the download indeed happened, this will come out in the deposition.

However, this “nightmare” fear that the defendant will “admit guilt” will only cause one result — the plaintiff will have proof that at trial, based on the information elicited from the defendant in the deposition, that defendant could be held liable for the $150,000 in statutory damages.  But then… how many of these defendants have $150K sitting around in their mattresses or in their bank accounts?  And if they do, don’t you think that instead of paying the judgment, they would rather hire a bankruptcy lawyer and file for a bankruptcy to discharge the copyright infringement judgment in bankruptcy?

In short, the worst-case-scenario in a deposition is that the defendant admits guilt, which is often what will likely happen if the defendant is the downloader of the copyrighted film.  But then after all this excitement, the plaintiff attorney and the copyright holder still want to get paid (and they know they are likely not going to collect anything by obtaining a $150K judgment against the defendant).  This is why the plaintiff attorney will likely initiate settlement talks with the defendant, taking his financial circumstances into consideration.

This is not to say that settling a case right away (and before being named and served) is no longer an option — there are multiple copyright holders filing in the Texas and New York courts, including Criminal Productions Inc., September Productions Inc., CELL Film Holdings LLC, the infamous Malibu Media LLC, Fathers & Daughters Nevada LLC, Dallas Buyers Club LLC, and the related non-bittorrent copyright holders which include DISH Network L.L.C. (not so much anymore) and Siemens Product Lifecycle Management Software, Inc. (a software company), each of whom have their priorities and specific instructions on how they would like their plaintiff attorneys to handle the lawsuits on their behalf.

But, what I do want you to glean from this commentary (really, it’s an article, but I did re-blog DTD’s article and I need to stick to that topic), is that plaintiff attorneys ARE naming and serving defendants, and it should be expected that this could happen — and if a defendant is named and served, they could still negotiate a settlement.  But be aware that in order to get to that point, the plaintiff attorney (who might be motivated by maximizing his billing to his own client [think, stealing from you AND stealing from his own client]) might drag you through a deposition and a number of steps before he accepts a settlement from you.


I agree that lawyers are expensive simply because we charge for the time it takes to complete each step of the legal process. However, many attorneys (myself included) already know how much time each step will take, so “flat fee” billing is an option (understanding that billing would happen based on timelines of where you are in the lawsuit).

Thus, it might make sense to hire an attorney who charges you a flat fee for a certain “block” or piece of the lawsuit (e.g.,






…AND SO ON, BLOCK 6: …TRIAL (my opinion, unlikely, unless the copyright holder figured out a way to prevent the deep-pocket defendant from filing for bankruptcy).

I have laid these out as a template, as each case and each copyright holder often needs to be handled differently.  Typically, clients were able to negotiate a settlement and be released from liability with just BLOCK 1.  However, as we discussed above, we are seeing more-and-more that plaintiff attorneys are taking defendants deeper into the lawsuits (“deeper down the rabbit hole, so to speak”), specifically past the “naming and serving” stage, past the answer stage, and into the discovery stages before considering or accepting settlements.  I am not one to advocate doing this on your own, and if you could afford an attorney (me, or anyone else), that is the safest way to go.  But if hiring me or another attorney is not an option, fighting this on your own (called, “pro se”) is the best alternative, and DTD’s article gives you a good first and necessary step in getting the ball rolling.

As I said before, good article, DTD!

Caveat – I’m not an attorney and I’m not practicing law. This is simply my thoughts and views based on what I see concerning BitTorrent (BT) Copyright Infringement Trolls. If you decide you need legal advice, please hire a knowledgeable attorney. IF you truly cannot afford an attorney, here at least is one possible option. […]

via Answering A BT Copyright Troll Summons/Complaint — DieTrollDie

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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    NAMED AND SERVED | When a Defendant Stops Being a John Doe

    TorrentLawyer University | Named and Served Defendant

    When is a bittorrent user “named and served”?


    • At what point is an accused torrent user ‘named and served’ in a lawsuit? Is it once the ISP turns over his information to the attorneys?
    • What do I do if I am ‘named and served’ in such a lawsuit?
    • Can your firm still represent me if I am ‘named and served’ in a lawsuit?
    • What if I am named and served in a jurisdiction in which you are not licensed?

    All of the proceedings that have been taking place with these copyright infringement cases have been in the pretrial stages while the defendant is still a John Doe represented merely by his accused IP address. Even after the internet service provider hands over the defendant’s identifying information, he or she remains a John Doe Defendant until the plaintiff attorney decides whether to name and serve the defendant or dismiss him or her.

    2017 UPDATE: I am including this article as part of the TorrentLawyer University set of fundamental topics which are relevant to bittorrent-based copyright infringement lawsuits.

    Am I ‘Named and Served’ when the ISP complies with the subpoena asking for my information?

    No.  The ISP was under a duty signed by a federal judge to hand over your information.  If your attorney did not file a motion to quash the subpoena, then your ISP likely complied with the judge’s order.  This means that they forwarded over your account information, along with the account information of the other “John Doe” Defendants in your case.  It is easiest to think about this as if the ISP sent over a spreadsheet with a bunch of lines on it — your account information was included in one of those lines.

    You are not named and served when your ISP complies with the subpoena.  You remain a “John Doe” defendant — anonymous to the world, but only known to you, the ISP, and now, your plaintiff attorney (and his copyright troll client).

    Being ‘Named and Served’ Happens When the Complaint is Amended

    Amending the Complaint (“Named”)

    A plaintiff attorney ‘names’ a bittorrent defendant when he amends the copyright infringement complaint, replacing the John Doe placeholder with the real defendant’s name.  In a bittorrent-based copyright infringement case, the plaintiff attorney names a defendant when he changes the name of the accused defendants from “John Does 1-200” (or however many “John Doe” putative defendants there are) to “John Does 1-199, and Jim Smith” (Jim Smith being the named defendant).

    Service of Process (“Served”)

    Upon naming a defendant, the plaintiff attorney then must ‘serve’ a defendant with a copy of the complaint.  The Federal Rules of Civil Procedure (FRCP) gives him a few ways to do this.  The easiest (and costliest method) is to hire a process server to stop at the defendant’s house and serve him with a copy of the complaint.  Other methods include using the U.S. mail (asking the defendant to waive service of process in return for receiving a longer time period to file an answer with the court), etc.  The complaint must conform to both the Federal Rules of Civil Procedure and the court’s local rules (more on this in a future post).

    Status of the former “John Doe” Defendant upon being Named and Served

    If the plaintiff attorney names and serves the defendant, the named defendant ceases to be a John Doe and must immediately file any motions (e.g., motions to quash if still relevant, motions to dismiss, etc.) with the court. The defendant is advised if he has not already done so to hire local counsel (or if he is already represented by an attorney, to have his attorney hire local counsel to file motions on his behalf) to defend the case.

    In short, upon being named and served, the defendant’s attorney (or local counsel) must file an answer to the complaint with the court, send a copy to the plaintiff, and must start evidentiary proceedings (e.g., discovery) if he is to properly defend his client.

    Can your firm still represent me if I am ‘named and served’ in a lawsuit?

    Absolutely.  A bittorrent lawsuit is simply a copyright infringement lawsuit.  It is filed in one of the many federal courts spread across the country, and any attorney who knows how to navigate the federal courts can represent you in your case.  Our Cashman Law Firm, PLLC practice focuses in federal court practice, so we can represent you in any federal court, even if we are not licensed to practice in that state.

    What if I am named and served in a jurisdiction in which you are not licensed?

    Not a problem.  Copyright law is exclusively federal law.  Thus, copyright infringement lawsuits belong exclusively in the federal courts.  Now obviously some courts will require that we hire local counsel in that state, but we already know which courts require this and are prepared to defend you in your case.

    Where the cases are (as of writing this article).

    Our firm has been gearing up for full-fledged copyright infringement lawsuits since September of 2010, but as of writing this article (Feb., 2011), so far the cases have not moved past the John Doe stages of the lawsuits. It just seems to me as if the plaintiffs are nervous that if they start suing, then we will start defending the cases diligently and we will start creating bad case law for them (which is exactly what they have been trying to avoid). If they move the case down this road of naming and serving defendants and we start winning on the merits of the case rather than having them dismissed based on procedural defects (as has been the case in most of the dismissals to date), we will shut down their operations and will make it almost impossible for them to continue their cash machine of suing John Doe Defendants without naming and serving the underlying defendants and scaring them into settling, only to dismiss and repeat with a whole new set of defendants.

    Warm regards,
    Rob Cashman, Owner
    Cashman Law Firm, PLLC


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      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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