Mark your calendars, December 6th is the date when the fate of many accused internet downloaders can change for the better or for the worse.
So far, over sixteen thousand internet users have received letters from their internet service providers accusing them of illegally using the torrent peer-to-peer (p2p) / bittorrent protocol to download copyrighted movies such as the Hurt Locker, Far Cry, and a number of others. None of them have been named in the lawsuit so far. That will all change on December 6th, 2010, which is the deadline the United States District Judge Rosemary M. Collyer set in the Far Cry case for the DGW plaintiff attorneys to either name the defendants over whom they believe the court has jurisdiction, or dismiss. This is good for a number of my clients who are unnamed defendants in this case.
With all the defenses against copyright infringement, e.g., “it wasn’t me,” “my roommate used my internet connection,” “my wireless connection was unsecured,” “I don’t know how to download via torrent,” etc., it is funny that in the end, the issue of who wins is PERSONAL JURISDICTION; law school civil procedure 101. This should be a lesson to all you 1L law students out there snoring away in your “CivPro” class — the topics you are learning can be applied to something cool as lawsuits against those who illegally download movies over the internet.
A Motion to Quash might not be the proper response to a subpoena seeking to disclose your identity.
I have been closely monitoring the procedural side of a number of these copyright violation cases where thousands of internet users have been accused of illegally downloading various movies using the bittorrent protocol. Upon receipt of a notice that an ISP has been provided a subpoena forcing it to reveal the identity of a subscriber accused of downloading a copyrighted film, a motion to quash (a.k.a., an “objection to the court”) to stop the ISP from handing out the subscriber’s identity appears to be the suggested next step. But in practice, filing a motion to quash has not achieved the result we would like it to. Plaintiff attorneys are claiming that the accused John Doe Defendant does not have “standing” to file the motion to quash because they are not yet a defendant in the case.
There is a scam going on in the bittorrent-based copyright infringement cases. Nobody is named and served.
A number of these internet users have hired the Cashman Law Firm, PLLC to represent them through the “negotiation and settlement phase” of the lawsuit. I put this phase in quotes because in truth what has been happening is that the plaintiff attorneys and the underlying media companies have performed what I consider a “slight of hand” with the legal system by naming each of these defendants in the lawsuit by their IP address or by being one of 1-5000 John Does. For the most part, as of today the plaintiffs have not named any defendants in these cases. Instead, they have issued subpoenas to the internet service providers (the ISPs) forcing them to hand over their subscribers’ information. The plaintiffs claim this is so they can do “discovery.”
What is actually happening is that outside of the legal system, regardless of whether it is the Hurt Locker lawsuit, the Far Cry lawsuit, or any of the other smaller lawsuits, the plaintiff attorneys have been harassing the accused ISP subscribers and taunting them using scare tactics to persuade them to pay thousands of dollars each to make them go away. In my opinion, this is an abuse of the legal process, and I would like to see an attorney general order this activity stopped. Nevertheless, this is what is happening.
Plaintiff “copyright troll” attorneys have asked the court for sanctions against a lawyer who created a “motion to quash” for sale.
On the motion to quash front, a number of people have asked me why I have not been advising a “march into court” approach. So far, attorneys and individuals who file a motion to quash have not been successful. Just two days ago, the plaintiff attorneys in the Voltage Pictures, LLC v. Does 1-5,000 case filed a motion asking the court to sanction an attorney who created forms which internet users purchased and filed with the court.
While I just spent close to an hour e-mailing the attorney against whom sanctions were requested and suggesting ways as to how to properly defend himself against their accusations, the fact that the law firm went after the defense attorney trying to help people out of this situation is notable, but it is not useful to you, the reader.
Claim: Filing a motion to quash is inapplicable to a defendant before he is named and served.
What is telling is that in their motion (Case 1:10-cv-00873-RMU, Document 19, filed 11/22/2010, pages 4-6), the plaintiffs state that a motion to quash, motions to dismiss, and motions for protective orders ARE COMPLETELY INAPPLICABLE BECAUSE DEFENDANTS ARE NOT YET NAMED OR SUED AS DEFENDANTS IN THE LAWSUIT. The plaintiffs continue (on page 5) and say, “The subpoenas are issued to the ISPs, and the Doe Defendants do not have to do anything in responding to the subpoenas [because they have not yet been named in the lawsuit].” (Emphasis added.)
There needs to be some motion or filing available to accused defendants, but a motion to quash has not yet been an effective answer.
I must point out that I disagree with the plaintiffs here because in my understanding, being named in a lawsuit (regardless of whether the defendant is named as an IP address or as a Doe Defendant) causes undue harm to the defendant even prior to being named as a defendant. The reason I say this is that each Doe Defendant is sent a threatening letter from their ISPs accusing them of illegal activity. Each Doe is put on notice that he or she has been named in a lawsuit and thus anticipates being sued. Each Doe Defendant is advised to retain an attorney and is told that he or she can be criminally and/or civilly liable for violation of the federal copyright laws. Each Doe Defendant is then ACTIVELY solicited and threatened by the attorney plaintiffs to “pay up or face a real lawsuit” where a judgment can cost a family their home, all their savings, their freedom, and possibly force them into bankruptcy. In my opinion, to say that a plaintiff at this point has no right to file such a motion, and that such a motion is not yet applicable until the defendant is actually named in the lawsuit is simply irresponsible lawyering.
But so far, I have not seen the motions to quash be an effective tool against the media companies looking to enforce their copyrights. I have not seen the judges letting defendants off the hook for simply sending in letters and/or form responses asserting what in my opinion are proper jurisdictional arguments.
A few days ago, Wall Street Journal reported that a Minneapolis federal court found Jammie Thomas-Rasset guilty of violating copyright law. Jammie is a single mother. The court ordered that she pay $1.5 million for sharing 24 songs over the internet. The plaintiff was the Recording Industry Association of America (“RIAA”).
I’m posting this piece of information to impress upon those contacting our law firm — the Cashman Law Firm, PLLC — that contrary to what you’ll read on the forums, the threat of being sued is real. This is just one example of a case where the accused internet user likely read about low settlement amounts, and when the RIAA offered her a $25,000 settlement [where the proceeds of that settlement would go to a music-related charity fund], she rejected that offer because she didn’t believe such a lawsuit could happen to her.
I want to point out that judgement is for sharing a number of SONGS. Our potential clients are looking to defend against downloading MOVIES. Think for a moment about the seriousness of this. Lucas Entertainment, Far Cry, and the Hurt Locker subpoena requests are all claiming the same violation of the same copyright law that was enforced against Jammie Thomas-Rasset just last week.
When someone calls me and balks at the prospect of paying a few thousand dollars to settle a MOVIE copyright violation, I scratch my head and wonder if they realize what they are up against.
With the representation the Cashman Law Firm, PLLC provides our clients, before we suggest that our client consider paying anything, we insist that the media company demonstrate that they have evidence linking our clients to the accused infringing download.
It also goes without saying that simply informing the media companies that their accused potential defendant is represented by an attorney, the media company is put on notice to only contact the attorney and not the client. By doing this, they are forced to adhere to the state and federal debt collection statutes, and the consumer statutes protecting the accused from any deceptive statements that might be given to an unrepresented accused internet user. Lastly, when writing the settlement, we make sure the release that accompanies the settlement contains language that prevents the media company from using the settlement as an admission of guilt and turning around and suing the internet downloader for the SAME DOWNLOAD they just paid to settle. It sounds unthinkable, but remember, it is the internet service provider (the ISP) who is served with a subpoena request demanding that they turn over their subscribers’ records. Once the media companies have this information, they immediately contact the to-be defendants and solicit a settlement. Remember, they do this without naming the defendant in the lawsuit. The settlement does not stop the company from coming after the defendant again in a formal lawsuit (using the settlement agreement as an admission of illegal activity).
In short, as twisted as this might sound, this is the reality of what is going on. Be careful out there. Hire an attorney and properly defend yourself. Play their negotiation game, and hope that they either drop the charges or offer an amicable settlement. When they do, be reasonable. Many would-be clients are kicking themselves for not spending $12 at the theater, or paying a Netflix membership when they had the chance. Now they must deal with this, and it is unfortunate.
However, ALWAYS REMEMBER that the goal is to avoid the lawsuit being filed against you. Because if a lawsuit is filed in your jurisdiction accusing a copyright violation, it is no laughing matter.
…I’ve been hearing through the grapevine that the Hurt Locker copyright prosecution team has begun their next wave of lawsuits. Internet users will be shortly receiving a subpoena from their attorneys accusing them of downloading this movie.
Nothing to do yet, at this point, the prosecution only wants your information so that they can contact you to elicit a settlement to deprive you of your hard-earned cash without a trial. Again remember — they haven’t named you in their lawsuit, nor is the settlement they are proposing a settlement to a lawsuit they have filed against you. They are trying to circumvent that step in the legal process and skip to where you pay them to go away. Has anyone heard another term for this sort of activity? It starts with an e.
Through the Cashman Law Firm, PLLC, we are telling these thugs to back off and to follow the law. We are also sending letters to various political operatives attempting to get them to change the law with regard to the way it is being applied (or misused) to charge users of committing crimes without filing suit in a court of law. There is no such thing as an extrajudicial hearing, and the concept of “innocent until proven guilty” has not changed.
Regardless of whether you obtain an attorney to defend your copyright infringement case (and there are MANY reasons for doing so), remember that the burden of proof is on them to prove their case before you bring one iota of evidence. At this point, some unrepresented parties are answering their questions and giving them forensic data to their computer and their hard drives to prove they are not guilty of that particular crime. Forensic computer experts have caught the scent of this game as well and have started up’ing their prices.
Again, at this point, they have only contacted your ISP asking for your information. While it is to your benefit to hire an attorney so that you are not “low hanging fruit,” so to speak, remember that there is nothing to defend against and provide evidence for because YOU HAVE NOT BEEN NAMED AS A DEFENDANT AND THUS YOU HAVE NOT YET BEEN SUED.
Motions to Quash ISP Subpoena Letters, Malibu Media Lawsuits, Rightscorp DMCA Settlement Notices, and Helping John Does.