This article can easily be taken out of context, but I hope the essence of it will get through to the readers. One month ago, I encouraged John Doe Defendants involved in bittorrent cases to consider having your attorney (myself or any other) write a NO SETTLEMENT LETTER on your behalf indicating to the copyright troll that there is no guilt, and there will be no settlement.
Among the various forms of representation our firm offers, this approach is called the “No Settlement” Representation Option.
However, to my surprise, while I might have a hundred people call our Cashman Law Firm, PLLC each month for their various cases, *NOT ONE* has called to inquire about the “no settlement” settlement letter option.
THE SOURCE OF THE “NO SETTLEMENT” LETTER STRATEGY
It occurred to me this afternoon that the reason for this is that John Doe defendants might not understand WHY this letter would be of use to them. Our Cashman Law Firm, PLLC has been defending clients accused of copyright infringement since 2010 when the first bittorrent-based copyright infringement defendants were sued. We obviously were not the only law firm that took on these clients (there were about 20 of us, some of whom I still speak to regularly and consider my friends and peers), but there is merit in knowing that we have been with these cases since the beginning. Thus, we do have some authority in understanding the dynamics of the cases.
In March, there was a paper written by Professor Sag and Jake Haskell entitled “Defense Against the Dark Arts of Copyright Trolling,” or “DADA,” if you want to refer to it in shorthand. In this paper, the scheme of copyright trolling is exposed, specifically discussing Guardaley’s “Black Box” and the actual absence of evidence from the lawsuits. In that paper, the solution even from these authorities is to have your attorney write a letter to the plaintiff attorney denying guilt and refusing to settle claims against innocent defendants. While our Cashman Law Firm, PLLC offered what we called an ‘ignore’ route to defendants which accomplished a similar result for our clients (no settlement, flat-fee unlimited representation until a dismissal), as a result of Sag’s paper, we are offering a ‘no settlement letter’ strategy as suggested to call the bluff of the copyright troll.
Now obviously there are a number of concerns a John Doe Defendant might have in employing this strategy, and this is something I’d be happy to speak about over the phone. Obviously the simple strategy of providing a ‘no guilt, no settlement’ letter is endorsed by our Cashman Law Firm, PLLC, other attorneys, our Twitter followers, and bloggers we follow and communicate with regularly.
However, it occurred to me that our community of attorneys, activists, and bloggers often resembles an ‘echo chamber’, where each of us ‘in’ the ‘echo chamber’ knows the facts and innuendos about a certain copyright troll or a certain set of issues, but even with the years of posts that we have written here, there still is a steep learning curve for actual defendants against whom these cases have been filed.
Thus, it occurred to me this afternoon WHY the ‘no guilt, no settlement’ letter strategy and its effectiveness may have eluded defendants accused of copyright infringement, and I wish to remedy that problem, starting with this article.
I know that I cannot fix this imbalance of information between the copyright holders and the John Doe Defendants with one article, but I do know that my TorrentLawyer blog has enough of a readership to at least get the word out on why the strategy of having your lawyer send a letter to the plaintiff attorney denying guilt might be a good idea, depending on your circumstances.
Why a copyright troll might not want to NAME AND SERVE each defendant.
The copyright troll’s business model is to sue as many defendants as possible, and to solicit as many settlements as possible, all before being forced to name and serve a defendant under the Federal Rules of Civil Procedure, Rule 4(m) or dismiss the case in its entirety. This is also referred to as the “120 day rule” to name and serve or dismiss John Doe Defendants.
To name and serve a defendant means that the plaintiff attorney has committed to fighting that defendant on the merits of their claim, namely, that this defendant downloaded a movie, film, or used cracked software in violation of the copyright holder’s copyright rights.
Why ‘being in the room’ is insufficient to prove copyright infringement.
What is hidden from the John Doe Defendants (and this is part of the ‘copyright troll scheme’) is that plaintiff attorneys rely on evidence provided to them by a German company named Guardaley (or their shell company counterparts). Guardaley provides them a printout of IP addresses which were ‘in the room’ where downloading and uploading of the copyrighted title or software allegedly took place, and the plaintiff attorneys (“copyright troll attorneys”) file lawsuits based on that IP address printout.
What is not said is that the Guardaley printout does not provide evidence that the download actually happened. Rather, this piece of evidence can be found in what is called a “PCAP file,” which helps the court understand whether 1% of the file was downloaded, or whether 100% of the file was downloaded. The existence of this PCAP is not pleaded in the lawsuits purposefully, because in these lawsuits, defendants are sued as John Doe Defendants as soon as they click on a bittorrent file and join the bittorrent swarm.
Intent to commit copyright infringement does not mean copyright infringement was committed.
However, just because a defendant intentionally clicked on a bittorrent file — even with the intent of downloading a pirated copy of some film or software — this does not mean that the download actually happened. In other words, just because a defendant intended to watch a copyrighted film from an illegal source does not mean that he committed copyright infringement. There is no ‘intent’ or ‘conspiracy to commit copyright infringement’ built into the copyright laws. In order to commit copyright infringement, the plaintiff attorney needs to prove (among other things) that the movie or software downloaded was ‘substantially similar’ to the copyrighted film or software.
‘Being in the room’ where copyright infringement happened does not mean you committed copyright infringement.
Thus, ‘being in the room’ where copyright infringement is happening does not make the account holder guilty of copyright infringement. Even downloading pieces of the file would likely not rise to the level of ‘substantial similarity’ as required by the copyright laws. The easiest way to think about it is that even if you were in a crowded room where a crime took place, that does not mean that you pulled the trigger and fired the gun that caused the crime, even though you came there with the intention of committing the crime. Okay, firing a gun is very different than stealing a copy of a copyrighted movie, but you get the point.
Even if you watched the movie, why there still might be no evidence of copyright infringement.
Then, what a defendant does not realize is that even if the plaintiff paid the $500 to Guardaley to obtain a copy of the PCAP file (I hear this is the going rate), this does not mean that Guardaley was monitoring the bittorrent swarm when the download was taking place. In other words, you may have downloaded or watched the entire movie, but there might be no trace of evidence that you did it.
Knowing what I know about tracking bittorrent swarms based on what I learned from fighting CEG-TEK DMCA settlement demand letter cases over the years, Guardaley is likely committing a huge fraud of ‘catching’ and suing defendants who did not actually download the film. Tracking every bittorrent swarm at every moment requires a huge amount of resources, which the copyright holder or the ‘common troll’ entity behind the scenes must pay for. Paying for servers to track the bittorrent swarm networks is expensive for the copyright enforcement companies. Cost saving on the tracking of the actual infringement and instead, resorting to a ‘IP addresses list printout’ of those ‘in the room’ (in the bittorrent swarm, but not necessarily downloading) when the downloading allegedly happened is more likely what is going on with these cases.
Thus, companies such as Guardaley will sue 1,000 participants of a bittorrent swarm using what is known as “snapshot evidence” (meaning, they’ll claim that all 1,000 internet users were part of a bittorrent swarm at a particular moment of time committed copyright infringement and downloaded the entire film or movie), whereas CEG-TEK — competing for the same business — will only ‘catch’ 380 internet users who actually did the download because they spent the money for the servers to actually track who did the download and who did not.
In other words, there is a high likelihood that even if you did the ‘crime,’ your IP address was swept up as merely being ‘in the room,’ but not as having downloaded enough of the file to constitute copyright infringement. This is why in the above example, Guardaley will have claimed that 620 more John Doe defendants committed copyright infringement than CEG-TEK would have.
In sum, the ‘no representation’ letter strategy is effective for an ‘innocent’ defendant because your plaintiff attorney is likely intentionally bluffing about the evidence.
The point of this article (which was meant to be simple) is that there is a very strong chance that plaintiff attorneys and copyright trolls are bluffing (and even these days lying) when they tell you that they have monitored the bittorrent swarm and they see that you downloaded 100% of the file for which you are sued, as the only piece of evidence that can document such a claim is the PCAP file which Guardaley does not provide, except for a $500 additional fee. Thus, the threat that you will be named and served if you do not settle is a *bluff*, one which you can counter with a letter calling that bluff and denying liability.
I have written about providing such a letter for innocent clients who did not do the download in my “‘No Settlement’ Representation Option Offered to John Doe Defendants” article posted on the Cashman Law Firm, PLLC site, and I encourage would-be clients to read Professor Sag’s DADA paper and consider using this new strategy.
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.