Tag Archives: Cashman Law Firm

Defense Strategies

IGNORE route representation empowers a defendant to say “NO” to extortion.

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Why I love the IGNORE route for our innocent clients.

I wanted to take a moment to share a revelation I had regarding the IGNORE route — a strategy we often discuss with clients who did not do the download and do not wish to settle.

NOTE: The word “ignore” is actually a misnomer, as we do anything but ignore. Traditionally, there are three options an accused John Doe Defendant accused of downloading a movie has:

1 — “fight” or “litigate” the case on the merits;
2 — settle the claims by negotiating a settlement payment;
3 — resolve the claims WITHOUT paying a settlement payment.

IGNORE ROUTE REPRESENTATION is a legal alternative to not hiring an attorney at all — just “ignoring” the case and hoping for the best.  Hiring an attorney in the “ignore” route will allow him to navigate your John Doe entity through the lawsuit and its pitfalls… to its eventual dismissal. 

The stated goal in the IGNORE route is NOT to pay a settlement.

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IGNORE route allows us to shoulder the burdens of no-settlement representation.

IGNORE route representation simply employs the strategy of hiring an attorney for the purpose of having that attorney shoulder the burdens a John Doe defendant would experience when analyzing and managing the risks involved in defending against a “copyright troll” copyright infringement case.

We simply have been here many times before with many past copyright holders and their attorneys, so we have seen how various plaintiff attorneys react to what are common scenarios or “story lines” that occur in these cases, and how judges act to move the case forward.

We have also defended against attorneys who broke the law and ended up losing their law license and going to prison, and we have defended against skilled attorneys who truly believe in taking the plaintiff’s side of a copyright infringement lawsuit.

I don’t know how to say this more clearly — we have seen many tactics and strategies arise, succeed, and fail over the years, and this has provided us an arsenal of tools that we can use when defending the interests of each client.

What are the FACTORS involved in analyzing a case for our client?

Involved in the analysis of representing a client in IGNORE route representation are:

1) reviewing or being aware of OTHER CASES in THAT specific FEDERAL COURT,

2) understanding the PAST RULINGS AND PROCLIVITIES of THAT FEDERAL JUDGE,

3) understanding the proclivities, talents, and skills of THAT PLAINTIFF ATTORNEY who sued on behalf of a particular copyright holder, and

4) making educated decisions based on OUR OWN PAST EXPERIENCES of each of the above to properly decide how to proceed at each stage of the lawsuit.

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IGNORE route deprives the copyright holder of the settlement they wish to extort.

Personally, the “ignore” route has always been one of my favorite strategies because not only does it deprive the plaintiff attorney and his client of a settlement when a settlement is not warranted, but it empowers my client to understand what is happening throughout the lawsuit so that they could see the case as I see it with my own eyes — based on my understanding of the circumstances and factors influencing the outcome of the case.

My favorite part about the IGNORE route representation strategy is that it gives my clients an authoritative way to say “NO!” to what would otherwise be a settlement extortion scheme.

Why the IGNORE route works.

IGNORE route representation is a well crafted strategy which analyzes and predicts deadlines, and it has correctly predicted the trends with very few surprises or accidental occurrences (e.g., without clients getting named and served or suffering some other complication due to attorney inexperience or inattention), and it accomplishes this goal simply because I take the time to do my research and watch the cases.

I hate to say this, but too many attorneys fail their clients simply because they do not do their homework.  They do not research their case, and they approach the lawsuit without understanding how a bittorrent-based copyright infringement lawsuit is litigated.  They approach the opposing counsel blindly without understanding who they are (with no knowledge of their past activities, proclivities, or personalities), and they approach the case itself thinking it is merely “just another copyright case” without understanding the motivations of the copyright holder or the nuances of how bittorrent-based “copyright troll” cases differ from traditional “copyright infringement” cases.  In the end, their ego and their unpreparedness only hurts their client.  And if they file a pro hac appearance with the court and they enter the court without researching what rulings have been made in the past in THAT district, or without knowing the personality of THAT judge presiding over the case, I have nothing to say except that they caused the results they achieved for their client.

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There are also a number of settlement factories and copycat attorneys who claim to do everything that we do, but cheaper.  These are often settlement factories who load their websites with advertising trash and repetitive articles designed to overwhelm you so that you end up calling one of their call centers. I hate to say this — while there will be many attorneys who offer the “ignore” route after reading this article, be aware that the ignore route is not merely keeping an open line of communication with the plaintiff attorney — it is doing what attorneys call “due diligence” in analyzing a case and coming up with conclusions and strategies that are very particular to each client’s PERSONAL NEEDS, the FACTS as to what actually happened, the client’s FINANCIAL ABILITIES and social pressures, AND all of the FACTORS I mentioned above (e.g., analyzing THAT plaintiff attorney, THAT copyright holder, THAT judge, THAT court, THAT federal court’s rulings, and the physical TIMING and ENVIRONMENT surrounding THAT particular case on THAT day or moment). You really can’t copy that, and “THAT” is exactly what you pay for with our law firm.

This method of representing clients is one of the “products” I have been proud to offer clients for the last SEVEN (7) YEARS as an alternative to the options they are often provided by other attorneys — who either push them to settle the claims against them, or leave them helpless to deal with the matter on their own — and I am happy to shoulder the burden and to be their eyes and ears of the case, protecting them with privileges an attorney is granted by the law.  There is so much more to say here, but I believe I have more than made my point.

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[CONTACT AN ATTORNEY: If you have a question for an attorney about the ISP subpoena you received and options on how to proceed (even specifically for your case), you can e-mail us at info[at]cashmanlawfirm.com, you can set up a free and confidential phone consultation to speak to us about your copyright infringement case, or you can call us at 713-364-3476 (this is our Cashman Law Firm, PLLC’s number / SMS].

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.

District of Columbia (DC), Hard Drive Productions Inc., Joinder, Judge Bates (DC), Prenda Law Inc., Steele Hansmeier PLLC, Torrent, Uncategorized

Judge Bates “removed” from Hard Drive Productions, Inc. v. Does 1-1,495 case. Potentially bad news for defendants.

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Like most of you, we here at the Cashman Law Firm, PLLC have been watching the Hard Drive Productions, Inc. v. Does 1-1,495 (1:11-cv-01741) case in the US District Court for the District of Columbia.

To our surprise and against the 1+ year trend of the DC Court, earlier this month, Judge Bates went against the trend to remain silent about the validity of these cases and inquired about whether or not John Doe Defendants in the case actually lived in DC. In short, we understand that if the judge came to the conclusion that this is yet one more of John Steele’s mass bittorrent cases (but filed in DC as a result of forum shopping), then the judge would have likely come to the conclusion that the DC court did not have jurisdiction to try the case. As a result, he would have likely SEVERED AND DISMISSED the case, giving Steele|Hansmeier, PLLC (now Prenda Law, Inc., a story in itself) the opportunity to file against defendants in their home states. As you have read in previous posts, as a result of such a dismissal, Steele would have three years from the alleged date of infringement to file these lawsuits in defendants’ home states.

What no doubt concerned Steele (and what caused an overflow of conversations on the various bittorrent forums) is that six days ago, Judge Bates took the extra step and invited Doe Defendants to file motions to quash with the Clerk’s office, stating that they would be put under seal (meaning, hidden from view).

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However, in spite of the judge’s invitation, I have not been advising people as to whether they should or should not file the motion to quash — and in fact I have been overly cautious about his invitation to do so — because historically, the District of Columbia Court has typically UNSEALED motions to quash when they deny them, leaving all the formerly sealed motions unsealed and naked for everyone to see.

The DC court has historically been AGAINST accused internet downloaders. Yes, we have certainly had our fair share of victories, but then again, many of the original cases are still alive (and because of this, plaintiffs have added perhaps thousands of new defendants to various DC cases, hence the new subpoena letters for older cases). I do not see why Judge Bates would be bold enough to go against former judges’ orders for essentially identical cases [See, Stare decisis (Anglo-Latin pronunciation: /ˈstɛəri dɨˈsaɪsɨs]) is a legal principle by which judges are obliged to respect the precedents established by prior decisions.], and the fact that Judge Bates was willing to go against Judge Beryl Howell and the others made me optimistic, but still cautious.

As much as this invitation to file appeared to signal a victory for the accused internet users, for whatever reason — political pressure, angry judges, etc. — today Judge Bates has essentially stepped down presiding over the case and he has handed the case over to Judge Facciola. This magistrate judge has seen bittorrent cases before, and in my opinion this could be a sad moment for the accused Does. To be clear, I understand that this transfer might not have been done with the permission or consent of Judge Bates. In fact, his order explicitly states, “Consent of the District Judge [him] is not necessary.” So perhaps we can piece together what has happened behind closed doors.

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While it remains my opinion that this case suffers from issues of improper jurisdiction and improper joinder, Judge Bates is no longer making the decisions as to whether the case will be dismissed or not. Similarly, it is no longer clear whether it is in Does’ best interests to file the motions to quash, or whether they will suffer the same fate as all the other motions to quash filed in the DC court over the past year.

As for what defendants should do — I would probably wait and see what Judge Facciola does. Will he continue in Bates’ footsteps and kill the case? Or will he deny the motions to quash and move forward? We can only wait and see.

District of Columbia (DC), Dunlap Grubb & Weaver PLLC, FRCP Rule 4(m) (120 Day Rule), Judge Kollar-Kotelly (DC), Sanctions, West Coast Productions Inc.

West Coast Productions. Rule 4(m) order. To name or dismiss? Plaintiffs choose to dismiss!

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On July 12th, 2011, we were all in dismay as to how Judge Kollar-Kotelly allowed the West Coast Productions v. Does 1-5,829 (1:11-cv-00057-CKK) case (in the US District Court for the District of Columbia) to stay alive, especially after imposing a hard deadline enforcing FRCP Rule 4(m) on the plaintiff attorneys which came and went with no comment, no order, essentially leaving us all wondering whether an order of hers actually was something to be taken seriously or not.

Well, today I would like to congratulate many of our clients at the Cashman Law Firm, PLLC on their dismissal from the case. Up front, this is not a complete dismissal, as a number of our clients are still putative defendants in this case.

That being said, as we know, Judge Kollar-Kotelly’s latest order still stands. BY AUGUST 15TH, 2011, PLAINTIFFS MUST NAME AND SERVE (or dismiss) ALL OTHER DEFENDANTS OR ELSE THE CASE WILL BE DISMISSED.

There was no indication as to why they did this today rather than in the next few weeks. My only guess (which is a weak one at best) is that when either the judge or the plaintiffs finally dismiss the case in its entirety, it might look better for the plaintiffs — in terms of preventing FRCP Rule 11 sanctions (should the court or any attorneys bring this up) for filing a frivolous lawsuit and not even naming one defendant after all these months — that the final dismissal be of just a handful of defendants rather than thousands of pages of IP addresses. That would certainly look bad.

I have attached a copy of the dismissal letter below for your viewing pleasure. To those of you who have been dismissed who are not our clients, please allow me to congratulate you on your victory.

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California (CA), Ira Siegel, Joinder, Judge Donna Ryu (CA), Pacific Century International LTD, Prenda Law Inc., Steele Hansmeier PLLC, Torrent, Uncategorized

Judge rules that it is improper to sue bittorrent swarms in the same lawsuit.

5 Comments

There is an interesting case coming out of the U.S. District Court for the Northern District of California — the court where most of John Steele’s newer and smaller Does 1-40 cases are showing up. In severing and dismissing all defendants (except Doe #1) in the Pacific Century International Ltd., v. Does 1-101 (4:11-cv-02533-DMR) case, Judge Donna Ryu held that it is improper to sue bittorrent users from different swarms in the same copyright infringement lawsuit, even if they all downloaded the same copyrighted work (e.g., the same movie).

In her decision, Judge Ryu made the distinction that each swarm has bittorrent users downloading a particular .torrent file, but the files themselves might not be similar enough for the plaintiff to join together all of the John Doe Defendants from the various swarms into one lawsuit claiming that all the John Doe Defendants downloaded “the same copyrighted work”.

For example, in one swarm, bittorrent users might download a low quality version of a pirated movie (e.g., perhaps from a “CAM” — an individual who takes a camrecorder into a theater and video tapes the film). Similarly, the bittorrent users of another swarm might be downloading a higher quality version of that same pirated movie, (e.g., a leaked high DVD quality version of a movie shared with movie screeners).

While each of these users who download copies of the copyrighted work — whether low quality or high quality — would likely be found guilty of copyright infringement [should any of the plaintiff attorneys decide to take these cases to trial rather sending out “scare” letters, making threatening phone calls, and in some cases naming defendants for the sole purpose of eliciting settlements], Judge Ryu ruled that it is improper to join the first swarm of bittorrent users (e.g., the low quality film downloaders) with the second swarm of bittorrent users (e.g., those downloading the leaked DVD version of that same work) BECAUSE the first swarm of downloaders WOULD NEVER INTERACT with the second swarm of downloaders. Thus, plaintiffs who join the John Doe Defendants of multiple swarms into one lawsuit claiming that each defendant necessarily participated in the SAME TRANSACTION OR OCCURRENCE is a faulty argument. Swarm #1 will never take part in the same transaction or occurrence as Swarm #2, and thus the judge ruled that it is improper to join defendants of the two swarms into one lawsuit.

This ruling flies in the face of almost every plaintiff attorney’s claim that each John Doe Defendant is properly joined with all the other defendants in that same lawsuit. Moving forward, should judges in other cases and in other jurisdictions adopt this judge’s opinion, following this opinion, the rule would be “ALL LAWSUITS THAT SUE DEFENDANTS OF DIFFERENT BITTORRENT SWARMS IN THE SAME LAWSUIT SHOULD BE SEVERED AND DISMISSED.”

How does this change the playing field? As we already know, John Steele, Ira Siegel, and the other plaintiff attorneys have already started suing smaller numbers of John Doe Defendants. Seeing a “Plaintiff v. Does 1-40” or “Plaintiff v. Does 1-60” (or even smaller) has become commonplace in bittorrent lawsuits. However, these smaller lawsuits have been made smaller in order to 1) fix the inherent issues of jurisdiction (e.g., suing defendants in the wrong court), and 2) to keep the case under the radar of the judges (after all, a lawsuit suing fifty defendants (Does 1-50) will incur far less attention than a lawsuit suing five thousand defendants (Does 1-5,000). Thus, in the new trend of these lawsuits, California defendants are now being sued in the California courts, Illinois defendants are being sued in the Illinois courts, and so on. Until the plaintiff attorneys begin suing defendants swarm-by-swarm (where a swarm is merely a snapshot of users uploading and downloading at a particular time), these smaller lawsuits also suffer the inherent flaw of “improper joinder,” and thus in time, they too will be severed and dismissed.

As a disclaimer, obviously this case is still alive as to John Doe #1 who remains a defendant in the case. In addition, there have been additional filings where the plaintiff attorney appears to be trying to convince the judge to change her mind on this matter.

I have attached a copy of the order below for your viewing and reading pleasure.

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