Tag Archives: copyright infringement

How an attorney should handle a Siemens PLM Software Lawsuit

Because software-based copyright infringement cases are especially concerning the John Doe Defendants who are accused of using pirated software (such as what is going on right now with the Siemens PLM Software v. Does [4:16-cv-03552] case in Texas), I thought it would be beneficial to take a few moments and simplify the process. That way, when you pay an attorney, you will know exactly what the attorney will be doing.

Steps an attorney should take in representing a defendant in a Siemens PLM case.

Here are the steps your attorney (us, or anyone else) should be taking on your behalf — specifically with the Siemens Product Lifecycle Management Software Inc. v. Does 1-100 (Case No. 4:16-cv-03552) case:

STEP 1) STOP PLAINTIFF FROM CONTACTING YOU OR ANYONE ELSE ON YOUR BEHALF (WORKPLACE) ABOUT THE CLAIMS AGAINST YOU.

Once your plaintiff attorney learns that you are represented by an attorney, all communication must be with that attorney alone. Phone calls or letters to client directly once a notice of representation is provided can jeopardize that attorney’s law license.

STEP 2) RESEARCH AND DISCUSS CLAIMS COMPARING PLAINTIFF ATTORNEY’S DATA OF USE VERSUS ACTUAL USE OR NON-USE.

Siemens PLM likes to research the claims, and they take their time in getting the entire picture before discussing settlement. It is important to share truthful information with your defense attorney so that claims against you can be disputed with facts and dates. And obviously, your attorney should have the common sense to discuss the claims without admitting guilt on your behalf.

STEP 3) DISCUSS AND NEGOTIATE SETTLEMENT OPTIONS WITH PLAINTIFF ATTORNEY, WHETHER A SOFTWARE PURCHASE, A LICENSE, A SETTLEMENT FEE, OR NO SETTLEMENT (PROCEED WITH LAWSUIT).

Normally the plaintiff attorneys in a copyright infringement lawsuit (or more frequently, a bittorrent-based “copyright troll” lawsuit) will immediately approach a settlement regardless of guilt or wrongdoing. This is not the case with the Siemens PLM Software lawsuits. Rather, it appears as if they are seeking to convert those using unlicensed versions of their software into paying customers. For this reason, once the investigation is completed and claims are discussed, settlement options are discussed as well. This might include purchasing software, paying a settlement, or negotiating a license based on the limited past use of the software.

The “no settlement” option is obviously the scenario where the client did not do the download. Because Siemens PLM software is expensive (costs can range from a few thousand dollars to over ten thousand dollars), there is no reason to negotiate a settlement if the accused John Doe Defendant did not download or use the software. Rather, the alternative is to provide proof that the John Doe Defendant is not the individual Siemens PLM is looking for (it is difficult to prove a negative, but it is doable), or to help Siemens PLM come to the realization that the actual software user is the engineer next door running his business from his home.

Obviously if neither side can agree on anything, then yes, it makes sense to proceed to allow the plaintiff attorney to name and serve your client, file an answer with the court, and proceed with defending your client’s interests in the courtroom.

STEP 4) NEGOTIATE PRICE (IF BENEFICIAL, CONSIDERING CLIENT’S ABILITY TO PAY). PROVIDE DOCUMENTATION OR STATEMENT IF NECESSARY TO SUBSTANTIATE CLAIMS.

Many accused defendants installed the software for educational purposes — to ‘tinker’ with the software, to learn the software, or to become conversant with the software. While the intention of the unlicensed use is noble (e.g., that user would later be working with a licensed version of the software at their workplace or in their business), for the moment, there was folly in their initial use of the software. This is our goal — to have these specifics be relevant and useful in a negotiation with Siemens PLM to arrive at a settlement price the client can afford.

STEP 5) NEGOTIATE TERMS OF SETTLEMENT AGREEMENT. NEGOTIATE A SOFTWARE LICENSE IF NEEDED OR REQUIRED.

These are two separate steps. The settlement agreement should be specific to the claims of copyright infringement, and they should include the nuances of Texas contract law in order to ensure the agreement is enforceable. The software license also is full of nuances and words that requires an attorney who knows what terms mean in software licenses (because certain words have meanings in the context of a software license which are contrary to the plain meaning of the word), and who is forceful enough to be willing to argue for terms or clauses which protect the client’s rights. Lastly, the software license should provide the accused John Doe Defendant the right to use the software in the way the accused defendant wants or needs to use the software in the future. It makes no sense to negotiate a limited software license to cover only past use when the defendant is an engineer and will be needing to use the software again in the future.

STEP 6) HAVE PLAINTIFF ATTORNEY SIGN AGREEMENT(S), THEN HAVE CLIENT SIGN AGREEMENT(S) AND PROCESS SETTLEMENT PAYMENT.

This is self explanatory. Siemens PLM is not bound to an agreement until they sign it (or until their attorney with authority to sign signs it on their behalf as their agent). Attorneys generally try to get the John Doe Defendant to sign first and pay their settlement fee, and then ‘maybe’ the plaintiff attorney will sign it, and ‘maybe’ the attorney will accept the payment, and ‘maybe’ the attorney will release that defendant from liability once the settlement is received. These are games a plaintiff attorney may play, and for this reason, it is advisable to have the defense attorney insist that the plaintiff attorney sign the agreement first in order to bind their client to the terms of the agreement… before their client signs the agreement or pays a penny in settlement of the claims against them.

STEP 7) FOLLOW-UP WITH PLAINTIFF TO HAVE CLIENT’S “JOHN DOE” ENTITY DISMISSED FROM CASE.

Once again, this is self explanatory, but unfortunately, it must be a step. Too often, plaintiff attorneys have the clients sign first and pay first, and then when they get around to it, they’ll sign the agreement and release that defendant from liability. However, this could take weeks or months.

The reason for this is because once their client has their money, without being contract-bound to release the defendant from the lawsuit, the John Doe Defendant who paid their settlement fee becomes a lower priority to the busy plaintiff attorney (who is juggling sometimes hundreds of defendants in multiple cases) who is more worried about the due dates for their other cases, or who is more worried about extracting settlements from other defendants. This is why it is important in STEP 6) for the plaintiff attorney to sign the agreement first.

Nevertheless, even with a signed agreement, sometimes the plaintiff attorneys need ‘reminders’ to do what they are duty-bound to do. Thus, your attorney should not close the client’s file when payment is sent, but rather, the attorney should stay on top of the plaintiff attorney until the dismissal is actually filed in the court dismissing that John Doe Defendant from liability.

In sum, copyright infringement cases are all similar, but each one has its nuances. The steps described in this article apply to any John Doe Defendant in any copyright infringement lawsuit, and for this reason, I wrote this article 1) to not only give the client an understanding of the steps which are required in representing a client prior to being named and served in a John Doe lawsuit, but more importantly, 2) to allow that client to hold their lawyer’s toes to the fire and make sure they are being represented carefully and individually.

LEVERAGE:

ONE LAST THING — I wanted to discuss LEVERAGE. A copyright infringement lawsuit is in federal court, which means that out-of-state attorneys may attempt to solicit clients to engage in settlement negotiations only. However, with a client as large as Siemens PLM, especially with the financial backing of the corporation and the millions of dollars they can pour into their lawsuits, it is probably a good idea to retain an attorney who can step foot into the courtroom if something goes wrong (and things DO go wrong). The Siemens PLM attorneys can recognize an out-of-state attorney who has little leverage to negotiate versus an in-state attorney who is willing to pull the settlement off of the table and proceed with defending the case if the plaintiff is not being cooperative in resolving the claims against the client. In short, an attorney with leverage will get a better result for his client as compared to an out-of-state attorney without leverage.

OTHER ARTICLES ON THE SIEMENS PLM SOFTWARE CASES:

Siemens PLM NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

Siemens Software Case IS a Bittorrent Case, on 6/20/2016.

What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX), on 1/16/2016.


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.

Siemens PLM converting NX software pirates into customers.

Siemens PLM has been suing engineers as “John Doe” Defendants

Siemens PLM Software has been suing engineers as ‘John Doe’ Defendants in federal courts.  The lawsuits are for the piracy of their NX software since it was in version 7 (so far, I have seen claims against users of NX 7, NX 8, NX 8.5?, but not yet for NX 9, NX 10, or NX 11 — all of which are available on the bittorrent networks). Most recently, I have seen lawsuits focusing in on the unlawful use of the Solid Edge ST9 Foundation software.

In June, I wrote the “What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX)” article which provided specific information surrounding the lawsuit from information acquired from the Siemens PLM lawyers themselves. However, back then, there was much still unknown, and now (almost 6 months later), I have a much better idea of how this is happening, what Siemens PLM is doing to catch those using the software illegally, whether claims of piracy are leaking over to the employers of the engineers who use the pirated software at their workplace, and how they are handling claims against those defendants, both in and out of the courtroom.

What you need to know about these lawsuits is that the Siemens PLM lawsuits still deceptively look like “copyright troll” lawsuits, but they are not. I will get into this momentarily.

*UPDATED* LIST OF FEDERAL COURT CASES FILED:

IN THE CONNECTICUT DISTRICT COURT:
Siemens Product Lifecycle Management Software Inc. et al v. Demin (Case No. 3:16-cv-00553)

IN THE NEW YORK SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. Does 1 – 100 (Case No. 1:14-cv-01926)
Siemens Product Lifecycle Management Software, Inc. v. Does 1-50 (Case No. 1:11-cv-08469)

IN THE OHIO SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software In v. Manufacturing Services International, Inc. (Case No. 3:16-cv-00182)

IN THE PENNSYLVANIA EASTERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. Does 1-50 (Case No. 2:12-cv-06795)

IN THE TEXAS EASTERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. BTL Machine, Inc. (Case No. 4:14-cv-00506)
Siemens Product Lifecycle Management Software, Inc. v. Does (Case No. 4:15-cv-00582)
Siemens Product Lifecycle Management Software, Inc. v. Mercury Metal Forming Technologies, LLC (Case No. 4:14-cv-00002)
Siemens Product Lifecycle Management Software Inc. v. Does (Case No. 4:15-cv-00017)
Siemens Product Lifecycle Management Software Inc. v. TWIVision Engineering Group, LLC (Case No. 6:11-cv-00679)

IN THE TEXAS SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software Inc. v. Does (Case No. 4:16-cv-03552)
Siemens Product Lifecycle Management Software, Inc. v. Does 1-100 (Case No. 4:16-cv-01422)

JOHN DOE DEFENDANTS ARE GETTING CAUGHT THROUGH THE *USE* OF THE SOFTWARE, NOT THROUGH THE ACQUISITION OF THE SOFTWARE.

In September of 2016, I was still piecing together how a person can get caught not through the download of pirated software via BitTorrent, but through the USE of that software (that article is still available for viewing, although the picture is more clear to us now as I describe my current understanding of it here, specifically tailored to the Siemens PLM Software-based lawsuits).

As we’ve learned, most Siemens PLM NX Software available for download on the piracy websites comes with a serial number (“SN”) and an “activator” which modifies the application to allow it to accept a random password that the SN activator generated.  (Not relevant, but still interesting to know:  The serial number + details about the computer or laptop upon which it is installed creates a “Unique ID” which can be checked with valid IDs on the server; this circumvents a computer from using a “valid” registration code for a computer for which that registration code was not licensed to.  Thus, even though the serial number activator provided the software with a valid serial number, the company servers know the software is pirated.)

This application modifier is known as a “crack,” and software which is altered to accept the serial number generated by the crack thinks locally (that is, on the laptop in which it was installed) that the software was properly acquired, purchased, and lawfully registered. Most cracks also revert the executable file used to run the file back to its original unaltered state once the software has been registered.

The problem is that even cracked software connects to the internet, for example, to access libraries in the program file which are stored on the company’s servers. In other words, for economy purposes, it would take up too much hard drive space to store every piece of a large multi-gigabyte-sized program on each person’s hard drive. Thus, companies now store core components of their software on their servers. This is generally referred to as “cloud-based software,” but what exactly is stored online with the Siemens PLM software is still unknown (and they keep this purposefully undisclosed because they track the IP addresses of the computers who run the software and access these files online).

EVEN IF THE SOFTWARE HAS BEEN REGISTERED using a “SN and an activator,” (as provided on the bittorrent websites), when the software connects to Siemens PLM’s servers to access pieces of the software to run, if the registration code (or more accurately, the Unique ID, as described above) does not match a valid paid registration from their own records, that software unbeknownst to the user is flagged as being unlicensed, and the IP address is recorded.  We now understand that the software user is not made aware of this until he is implicated as a John Doe Defendant in a copyright infringement lawsuit.

EVERY TIME that user uses the NX software, another entry of unlicensed use is recorded (date, time, etc.) and the IP address of the internet connection used when accessing the software is also logged. This is how a Siemens PLM lawsuit against a John Doe engineer can leak over to his employer receiving letters for the infringement of their software, even when the software was acquired at the accused John Doe engineer’s home.

WHO IS THE TARGET OF THESE LAWSUITS.

I mentioned above that the Siemens PLM lawsuits look deceptively like “copyright troll” lawsuits, but they are not. Rather than extorting a few thousand dollars from every John Doe Defendant regardless of guilt, Siemens is looking for a particular defendant.

Siemens PLM Software wants to find the engineer who is providing “paid” engineering services, either 1) from his own laptop in his own small business, or 2) from his employer’s place of business where unbeknownst to the employer, that employee is bringing his unlicensed software to his workplace and using that pirated software at work [noting that his work does not own or pay for a license for the software].

In other words, Siemens PLM wants to find those engineers who are using their software but who are not paying a license for the use of that software, and they want to turn that enterprising engineer into a paying customer. Moreso, Siemens PLM wants to find that company (the employer of that engineer) who is benefiting from the unlicensed use of their software, and to turn that corporate entity into a “volume license” paying customer. This is where the “big bucks” are made.

WHAT IF YOU ARE A STUDENT?

Students are a different story than paid engineers. Just as law students are fed unlimited free case lookup services and are encouraged with points and free coffee mugs for using as much of services as they can [only to be hit with a multi-thousand-dollar subscription upon graduation for what a few days ago was free (think, WestLaw, LexisNexis)], engineering students are seen as the same “cash cows” for Siemens PLM as law students are seen by the WestLaw/Nexis case lookup services. A poor engineering student today is seen by Siemens as a future subscription-based customer for the rest of his working career, and if not, that engineer’s employer will be a “volume license” customer which is even more profitable for Siemens.

If you have not yet figured this out, I have found that engineering students (and those individuals who are smart enough to figure out that the NX software has specific applications for use in conjunction with their 3D printers) find themselves in the spider web of these lawsuits more than anyone else. These individuals ‘mess around’ with the software in ways which do not provide them an income (what we call “non-revenue-producing use,” or “personal use”). Rather, they use the NX software (or more recently, the Solid Edge ST9 software) to gain professional skills knowing that if and when these students do find employment, use of the Siemens PLM software will become a necessity. So the students download it, play around with it, then get sued and call me fearing that their professional lives are over.

But no attorney at Siemens PLM — not Robert Riddle, and certainly not Steven Dietz — wants to end the financial life of a future customer. Aside from the fact that a student has no assets to seize, it is my understanding that Steven Dietz would rather turn that student into a loyal customer. For this reason, I have been able to accomplish resolutions of claims with students in a way in which is simply not available to the engineer who uses Siemens PLM’s unlicensed software for profit.

That is not to say that an engineer won’t be able to “get out” of this lawsuit — it simply takes a bit more work, perhaps paying Siemens PLM a settlement fee based on their particular circumstances (read that again carefully), and based on what software was allegedly used, what module add-ons were used or needed, whether the use was for personal or business reasons, and whether use of the software is still needed in the future.

The Engineer-Student Roommate Scenario

Lastly, [since I am listing scenarios I’ve seen over the past few months,] non-engineering students who have roommates or suitemates who are engineering students also have been the recipients of the subpoena letters from their ISP (most recently, Comcast). While Siemens does not see the non-engineering student or enterprising 3D printer genius as a future customer, your engineering roommate or suitemate is still seen as such, and thus involving him or her as part of the solution can easily fix a $150,000 copyright infringement lawsuit against you.

In sum, Siemens wants to convert those illegally using their software into customers.

So as you see, Siemens PLM looks like a copyright troll, but they are not. Their attorneys are often not interested in merely a settlement, but in converting the accused John Doe software user into a customer (or, as a future customer). This means that settlements are accepted where there is a future benefit to Siemens PLM, as they are not looking to use the lawsuits as a means to “cash out” or to “punish pirates.” Obviously this could change, and there have been circumstances where it is more feasible to simply defend a client by representing him or her in the federal court rather than having him agree to anything he or she did not do, but for the most part, Siemens PLM seems to be straightforward on what they seek to accomplish with these lawsuits.

OTHER ARTICLES ON THE SIEMENS PLM SOFTWARE CASES:

How an attorney should handle a Siemens PLM Software, Inc. lawsuit, on 1/11/2017.

Siemens PLM NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

Siemens Software Case IS a Bittorrent Case, on 6/20/2016.

What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX), on 1/16/2016.


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.

Did Malibu Media almost go out of business in April 2016?

So we all thought the Malibu Media, LLC lawsuits were dead this summer after Malibu Media sued their attorney Keith Lipscomb (a.k.a., the “kingpin” and “mastermind” behind the 6,800+ lawsuits filed against single “John Doe” defendants)). If you want a quick summary, here seems to be the jist of what happened.

  • Malibu Media, LLC hired Lipscomb to run their copyright infringement / settlement extortion scheme utilizing his network of attorneys spanning the federal courts across the US.
  • Lipscomb appeared to have pulled in hundreds [maybe thousands] of settlements, each settlement likely amounting to $10,000-$30,000, or more.
    (NOTE: This dwarfs the settlement monies collected by Steele & Hansmeier, now arrested for mail fraud, wire fraud, and perjury allegedly committed in the furtherance of their copyright troll scheme.)
  • Lipscomb apparently paid Malibu Media, LLC only $100,000 in commissions (the equivalent of ten settlements [10 x $10,000 = $100K]), but then never paid Malibu Media again.

[HINDSIGHT: MALIBU MEDIA LLC CONTINUED FILING AFTER THIS, BUT JUST WITH A NEW ‘INVESTOR’.  FOR IMMEDIATE CONTACT WITH AN ATTORNEY: Click here for more general information about Malibu Media, LLC lawsuits, their tactics, and their strategies.  To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at [email protected], or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.]

What caused the lawsuit between Malibu Media, LLC and Lipscomb?

The relationship between Lipscomb and Malibu became sour when Malibu Media, LLC became suspicious as to how they only earned $100K in commissions.  They demanded an accounting to determine whether they were being paid properly (this is still being litigated, but my guess is no; namely, that Malibu was being cheated by the lawyers they hired to extort others). Lipscomb claims that Malibu actually owes him money (to simplify the numbers, think — 6,800 lawsuits filed x est. $400/filing = $2.7 Million in filing fees alone). Malibu sued Lipscomb, they went to court, and in late April 2016, new Malibu Media, LLC filings stopped dead.

On April 18th, 2016, Keith Lipscomb told all of his local counsel that he is no longer representing Malibu Media, LLC (citing a lack of profitability), meaning that each of his local counsel were no longer representing Malibu Media, LLC, or so we thought. Wrong. Various local counsel continued the lawsuits already filed, but very few new suits were filed.

Here are the number of case filings since:
April 2016 Filings: 97
May 2016 Filings: ZERO!
June 2016 Filings: ZERO!
July 1- July 20 Filings: ZERO!
July 21 -> [end of month] filings: 75
August Filings: 59
September Filings: ZERO!
October Filings: 109 — FULL SPEED AHEAD? Nope.
November Filings: ZERO.
December Filings: ZERO…?

So, we are now in December (six months later), and Malibu Media LLC lawsuits are far from dead, or are they?!?

Here’s what I understand:
1) Lipscomb is no longer in charge of the Malibu Media, LLC lawsuits.
2) Individual attorneys (formerly, local counsel) appear to have taken Malibu Media, LLC as their own client, meaning that Malibu is creating relationships with each attorney, and each attorney appears to have a “territory” or a federal district court in which s/he practices.
3) I still think there is someone at Malibu Media, LLC headquarters (maybe Elizabeth Jones) still directing all of the attorneys.

In sum, Malibu Media, LLC and their lawsuits are not dead, at least not yet, but they continue to plague the federal courts and the accused downloaders with their high-ticket settlement prices, and thus they still need to be taken seriously, at least for now.

NEXT: Let’s go into the recent cases themselves to get an idea of what is going on with the last set of cases filed…

Sources:
Arstechnica: “File-sharing lawsuit numbers drop by more than half; both Malibu Media and Prenda Law have run into different roadblocks.” on 7/19/2016.

Techdirt: “Malibu Media Sues Its Former Lawyer Over Missing Funds, Breach Of Bar Rules,” on 6/29/2016.

Arstechnica: “Porn studio that sued thousands for piracy now fighting its own lawyer,” on 6/28/2016

Fight Copyright Trolls: “Malibu Media sues its former counsel Keith Lipscomb and his firm for professional negligence and breach of fiduciary duty,” on 6/28/2016


FOR MORE INFORMATION ABOUT MALIBU MEDIA, LLC:  Click here for more general information about Malibu Media, LLC lawsuits, their tactics, and their strategies.

FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at [email protected], or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

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.

Piracy is a ‘Black Market’ Symptom of Mispricing Content.

[NOTE: I might be accused at a later time of stating that piracy is a black market SOLUTION to the copyright problem using the URL title of this article as “proof” that my initial thought was that it was a solution, not a symptom.  Rather, this was a mistyping error (I was looking at a “Group Buying is one SOLUTION to fix the broken copyright system,” note and correspondingly used that word in the title.  Because I did not want to interrupt the publication of this blog (in which the old URL was posted to Twitter, Facebook, etc.), I left it as it is.]

This blog post is a response to the “Close to Anonymity” author who is proposing a “group buy” solution to the copyright problem. It is also a follow-up article to my “Group Buying” Through The Eyes of Piracy article written on August 24th, 2016.

[To the author:  Once again, I want to reiterate to the author that I wholeheartedly support the concept of group buying as he proposes it. It is clear to me that he has put a tremendous amount of time and effort thinking this through, specifically on how to implement it. I support him 100% and there needs to be more individuals like him to speak out to fix the broken copyright system.]

The running theme of this blog has been that the copyright advocates (MPAA / RIAA) and copyright holders are over-exerting power given to them by the copyright statutes. Further, the copyright holders are focusing their efforts not on the creation of new and useful content, but on the extreme monetization of old and recycled content, often using unethical means (unconstitutionally high [$150,000] statutory damages for copyright infringement) to achieve their financial goals. I would suggest that while piracy is a legitimate problem, it is a symptom of greed, dishonesty, and an unwillingness to make content reasonably available to the consumer at a price the consumer is willing to pay for that content.

Instead of fixing the problem, those in power have called our side names, e.g., the “copyleft,” or the “pirate party,” whereas most of us who fight copyright holders believe staunchly in copyright, but disagree in the way their enforcement has been applied, often lobbying politicians and lawmakers and asking them to increase penalties and punishments to those caught infringing their copyrighted content, while at the same time clamping down on providing avenues for those same consumers to purchase or view the content lawfully at a reasonable price.

The reality is that a media company selling a piece of software for $100 would in fact claim that [of the 9 individuals who came together to purchase that piece of software at $10 a piece,] if the “group buy” were not available, *IF at least two* would have purchased the software product at full price, they would have lost profits under the group buy model.

*THIS IS THE FALLACY WITH THE COPYRIGHT HOLDERS — THEY FALSELY BELIEVE THERE WOULD BE A MARKET FOR THEIR PRODUCT IF PIRACY (OR IN YOUR CASE, A GROUP BUY) WERE MADE IMPOSSIBLE, AND IF YOU PIRATE SOFTWARE OR IF YOU MAKE GROUP BUYING OF COPYRIGHTED MEDIA POSSIBLE, IT WOULD BE YOUR FAULT THEY HAVE LOST THE PROFITS THEY WOULD HAVE BEEN ENTITLED TO.*

Assume for a moment that you are correct in that there would not be two purchases, possibly NOT EVEN ONE at full retail price. The copyright holder would rather make ZERO sales ($0 profit) rather than risk that multiple (here, 9) individuals would group together to make ONE purchase because they would see that as a disaster for their bottom line and they would count each group buy as a loss (here, of 9 potential sales).

Realistically, the answer is that the market should determine the price of a product, and not a copyright monopoly, threats under the Digital Millennium Copyright Act (DMCA) or statutory damages for copyright infringement. The existence of a “black market” for their copyrighted products (here, through piracy) is a strong indication to the copyright owners that they are either 1) mispricing their products, or 2) that they are failing to make them adequately available to the paying public.


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.

Dallas Buyers Club sues Voltage for not sharing proceeds.

It is 12:30am and I really do not have time to go into this, but I just learned that Dallas Buyers Club, LLC is suing Voltage Pictures, LLC in Montgomery County, TX for, among other things, not paying fees to Dallas Buyers Club for the licensing fees owed to them.

[Hat tip to SJD @ FightCopyrightTrolls for breaking the story.  Her link to the lawsuit can be found here.]

It appears from the TX case filing (Cause No. 15-06-06049) that Voltage Pictures, LLC approached Dallas Buyers Club, LLC and offered to pay for the license to act as Dallas Buyer’s Club’s agent so that they can sell the film abroad and… so that they can file lawsuits against John Doe Defendants across the US. Part of this agreement appears to be that Voltage Pictures was permitted to use Dallas Buyer’s Club’s name.

082516 Voltage-DBC Power of attorney

…and skipping down a bit:

082516 Voltage-DBC Exclusive Agent

Well, now we learn that Nicholas Chartier and Voltage Pictures are being sued because after making all of the sales and suing all of the John Doe defendants for copyright infringement, Voltage Pictures is accused of cheating Dallas Buyers Club out of their earned licensing fees.

I feel as if I just fell down a rabbit hole…

Thus, whenever we saw a Dallas Buyers Club, LLC lawsuit, and whenever we represented a client against Dallas Buyers Club, LLC, we were really representing them against… VOLTAGE PICTURES, LLC?!?

This brings me to the Fathers & Daughters Nevada, LLC cases.  Did Voltage Pictures, LLC make the same licensing deal with the Fathers & Daughters movie producers, and are they also not paying them the money that is due to them?  When we see a Fathers & Daughters Nevada, LLC case, are we really representing clients against the makers of the Fathers and Daughters movie? Or are we representing clients against VOLTAGE PICTURES, LLC who is parading as Fathers & Daughters Nevada, LLC and claiming that they are Fathers & Daughters Nevada, LLC, when really they are not?!?

This also makes me ask who the attorneys for the Fathers & Daughters Nevada, LLC are really representing? Are Josh Wyde and Gary Fischman suing on behalf of Fathers & Daughters Nevada, LLC? Or are they suing on behalf of Voltage Pictures, LLC pretending to be Fathers & Daughters Nevada, LLC?  I know Josh is watching this blog, so please feel free to comment.

Who is their client? Voltage or Fathers & Daughters Nevada?

Last question, and then I’m going to sleep. Will Voltage Pictures, LLC soon be sued by the real Fathers & Daughters copyright holders for failure to pay the licensing fees, proceeds, and sales from the monetization of the Fathers & Daughters movie copyright? Have the same facts that are coming out with the Dallas Buyers Club, LLC lawsuit also transpired with the Fathers & Daughters Nevada, LLC copyright holder?

One more thought — a while back, I was concerned that perhaps the shell companies that were created for various movies were not properly funded. [Well, okay, I backed away from that accusation, but that was on my mind.]  The original thought was that production companies made movies, and to limit their liability, we understood that they set up shell companies as limited liability companies so that if something went wrong or if, say, Dallas Buyers Club caused damage to someone and they were sued, fined, sanctioned, or otherwise held liable for damages from their activities, those damages would be contained to the Dallas Buyers Club, LLC limited liability entity, and they would not trickle “up” to what I thought was the Voltage Pictures, LLC production company.

However, now we see that Voltage Pictures, LLC is NOT the production company, but a LICENSEE (one who signs an agreement to acquire a license to sell or act on behalf of the copyright holder [the licensor]). Thus, this brings me back to the entity that was formed to sue John Doe Defendants in federal court. Dallas Buyers Club, LLC, and Fathers & Daughters Nevada, LLC (the two Voltage-related companies that are currently on my mind). Are they properly funded? Who owns them, and who are the real parties acting through them? Voltage Pictures or Dallas Buyers Club? Voltage Pictures or Fathers & Daughters? Who is providing the funding for them?  And did they properly notify the court of this arrangement when they filed the lawsuits against the John Doe Defendants?

Wow, when they say that there is “no honor among thieves,” they weren’t kidding.  First Keith Lipscomb is sued by Malibu Media, LLC for not paying them the royalties and/or funds received through Lipscomb’s Malibu Media, LLC v. John Doe lawsuits across the US, and now Voltage Pictures, LLC is being sued by Dallas Buyers Club, LLC for the same thing. I also want to point out that Liberty Media also sued their lawyer, Marc Randazza (although the circumstances were different, and if what Marc wrote in his defense was true (e.g., that they used his office desk to shoot adult films), both Liberty Media and Randazza are both to blame, but for different reasons). I also remember when Prenda Law Inc. stopped paying their local counsel here in Houston the fees and commissions he earned through the filing of the lawsuits.

So… in sum, is this the scenario of thieves stealing from thieves as we have seen before? Or is this an example of “copyright trolls stealing also from their own clients”?? Wow, this field of law has skeletons hidden in closets all over the place.

UPDATE: For more on this topic, SJD covered this topic in detail.  See FightCopyrightTrolls article, “How copyright trolls plunder both US citizens and… rights holders.


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.

A rant about poor quality Hollywood content & distribution.

I thought that TAC’s response to my article last night deserved a spot of its own, so I am pasting it below.

In short, he’s right. As a lawyer, I get so caught up with each individual client and defending whether copyright infringement actually happened or not that I overlooked the big picture “elephant in the room” point — that if the movie production companies would actually make good content which would inspire someone to buy a movie ticket, and if they would make that good content readily available rather than blaming downloaders for a few bucks of loss of revenue, then piracy wouldn’t even be a problem.

I used to be a movie buff. I would see every movie in the theaters, and if there was something I missed, I would catch it later when it came out on DVD. However, the… pardon my language… “crap” that has been coming out of the theaters over the last ten years has lost me as a fan. I cannot remember the last time I saw a movie and felt that I got my money’s worth. More often then not, I leave the theater feeling cheated.

The internet created a problem for the movie companies where it enabled average internet users to share digital copies of movies which [by definition of being “digital”] are the identical quality as the files burned on DVDs from which they are ripped. They tried to stop the copying through creating privacy measures that blocked an individual from being able to copy videos, but individuals got around those protections.  Then they passed the Digital Millennium Copyright Act (“DMCA”) statutes and made it a crime to unblock the copy protections, but people did it anyway.  Then they sued the downloaders and claimed they were going after the lost revenue, but instead, they went after statutory damages of $150,000 per instance of infringement.  In the process of suing downloaders (rather than suing the initial uploader or working to take down the infringing videos), with the birth of the Dunlap Grubb and Weaver, LLC Voltage Pictures, Inc. “Hurt Locker” and “Expendables” lawsuits, Voltage Pictures, Millennium Films, and other production companies turned their failed b-rated movies into a money-making extortion-like shakedown scheme where they asked for tens of thousands of dollars for what was really the loss of a movie ticket or a DVD rental.

The point is that Hollywood and their production companies spend so much time trying to clamp down and stop people from getting content that if they spent those same dollars finding new ways to make content readily available, they would stop the piracy problem (or at a very minimum, they would convert many would-be pirates into paying customers).  Netflix, Amazon Prime Video, and Redbox have the right idea of trying to find ways to get movie content into consumers’ hands, but even they run into licensing problems where the Hollywood movie studios won’t let them provide content to their subscribers (and thus great movies and TV shows are commonly lost to history).

[Case in point — The Stargate TV series (Stargate SG-1, Stargate Atlantis, and Stargate Unvierse) — all AMAZING shows, but there was a point that Netflix took them down from their site citing licensing issues, and if you wanted to see them, you would have needed to either buy the DVDs on Amazon, or “look elsewhere” for them (meaning, piracy).  I would have happily paid more to Netflix to keep them available, even in a “click here to pay a bit more to see this video” fashion.  UPDATE: I am happy to share that Amazon Prime provides all seasons of these shows to their paying customers, so yes, Jeff Bezos is doing his job of making content available.]

This argument has gone around in circles for many years. Point being, the movie companies have obviously chosen that their focus will be to clamp down and spend their money to fight the losses from piracy rather than innovate and make good content that would inspire people to open their wallets and pay for a movie ticket or rent a DVD.

This is my point, this is my feeling, this is how I see things. I could be wrong, but who cares. Unless I see quality new content in the theaters (and not recycled old story lines), I’m not buying a ticket. Superman versus Batman?!? Really? Yet one more Borne Identity?!? Really? Ice Age in Space?!? Really? How many times can I hear the same story told over and over again? I’m honestly bored of all of this recycled media crap and I wish they would start looking for new and original content.

Thus, in all fairness and thanks to “That Anonymous Coward (TAC),” below is his comment to last night’s “We are winning the bittorrent piracy war against copyright holders, but what are the unintended consequences?” article which inspired this entire line of thought.

TAC from that anonymous coward :

And there in lies the biggest problem.
People look at Popcorn Time, and don’t understand how it works. They might assume that its just an awesome service. It works like everyone imagines we should be able to get content.

The “war” has always been pointless.
Everything done to “stop” pirates, ends up punishing paying customers… and eventually when you hassle paying customers enough they look for other ways to get the content.
We’ve missed out on technology moving forward, because of screams that it MIGHT hurt the bottom line of an industry that has its own special ‘accounting’ practices that manage to make a world wide blockbuster look like it lost money.
They aren’t honest about their books, they aren’t honest about actual harm, they aren’t honest about why they refuse to stop punishing paying customers & creating more consumers that might turn to piracy because it meets their want for the content how, where, when they want it that the industry can’t seem to understand.

When they cling to an outdated business model, ignoring the consumer demand for access, they have forgotten they are in business to sell content… not impose pointless control over people who already paid them who get treated worse for playing by the rules.

Imagine what they could have done with all of the time and money they have dumped into the anti-piracy schemes (that never pay that well or accomplish what is promised) and had used it to “fix” the horrible patchwork of laws & rules to create a unified worldwide business model that makes getting the content customers want faster & easier. But then they would be making more money they they ever imaged possible… but would still be imagining there is a dollar out there they aren’t getting & end up harming paying customers chasing the imaginary dollars.


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.

Siemens Software Case IS a Bittorrent Case

This is a follow-up article to the “What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX)” article I wrote last week.

I did a bit more digging into the Siemens Product Lifecycle Management Software Inc. v. Does 1-100 (Case No. 4:16-cv-01422) lawsuit in the U.S. District Court for the Southern District of Texas, and I learned more about their software, and more about where some of the John Doe defendants are coming from.  What I also learned was that this is not the first time they have sued defendants for copyright infringement.

The Siemens Product Lifecycle Management (“PLM”) software being sued over is known as the Siemens NX software.

According to Wikipedia, “NX, formerly known as NX Unigraphics or usually just UG, is an advanced high-end CAD/CAM/CAE software package originally developed by Unigraphics, but since 2007 by Siemens PLM Software… NX is a direct competitor to TopSolid, CATIA, Creo, Autodesk Inventor, and SolidWorks.”

The Pirate Bay shows 9 torrent files for “Siemens NX” software (below).

062016 Siemens PLM NX

Surprisingly, for version 9, there are only 3 seeders (uploaders).  For all others, there is only one seeder.  For a program that takes on average 1GB-5.7GB to download, a download like this could take forever to complete.

Looking at version 10 (the current stable release; version 11.2 is probably a fake), there is one seeder (uploader) and one leecher (downloader).  See attached.

062016 Siemens PLM NX 10

As dry as this post may be, the point is that my suspicions were correct — even though the bittorrent file provides a serial number (probably a valid, but likely an OLD registration code), and even though there is an “activator” which modifies or “cracks” the pirated file to allow the software to accept the old serial number [it likely does this by blocking the “authentication” feature when the software checks with the server to verify the registration key], the software looks to the user as if he has successfully registered the software.

However, through the CASUAL USE of the software, the activator software is likely not persistent, which means that after the software is registered using the old key, it restores the software’s executable (.exe) file to its original state.  Then, when using the software, it connects to Siemens’ servers for whatever purpose (to download an update, to check for new features, etc.), and this is how their copyright enforcement / IT department can identify the IP address of the individual using a pirated copy of the software.

In sum, what this means is that Robert Riddle and the Siemens copyright holder likely knows how long the software has been in use, and which IP addresses have been using an old or invalid serial number.  This will likely be a consideration when discussing the matter with the plaintiff attorneys on behalf of my clients.

What all this means for you — 1) June 22nd appears to be the date that Comcast will be ordered to hand over the names and addresses of the 100 accused John Doe defendants, so there is no anonymity and the John Doe defendants will be exposed to being named and served as defendants in the lawsuit. 2) If you have been using the software, they likely know more details than you would like as to what you have been doing with it.  3) Speak to an attorney (me, or anyone else) about what options you have to get out of this, whether you were the downloader, the purchaser (of a pirated copy of the software), or whether you have absolutely no idea why you have been implicated as being one of the John Doe defendants in this case.

OTHER ARTICLES ON THE SIEMENS PLM SOFTWARE CASES:

How an attorney should handle a Siemens PLM Software, Inc. lawsuit, on 1/11/2017.

Siemens PLM NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

Siemens Software Case IS a Bittorrent Case, on 6/20/2016.

What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX), on 1/16/2016.


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.

What to do about the Siemens PLM Software v. Does case (TX).

This is one of the more difficult blog entries to write, because the “Siemens Product Lifecycle Management Software Inc.” case is not the typical bittorrent extortion case, but rather, more of a “compulsory licensing” case.

In short, it would be too easy to say that the 100 John Doe defendants were implicated as downloading or uploading Siemens’ CAD software using bittorrent, because this is not the case. Siemens’ software appears to “phone home” when being used, revealing the computer users IP address (thus making them a target in a lawsuit such as this one).

Cracks and keys probably were part of the software download package, if the software was downloaded via a website. Alternatively, the download instructions perhaps instructed “to block the internet connection using a software firewall,” but the downloader forgot to read the instructions.

Lastly, some of the defendants are believed to have purchased the software (e.g., while the software license itself could cost $20,000, the pirated copy cost $50), but the software they purchased was pirated. Thus, when they entered the key to register the software, the key was flagged as being a pirated copy.

In short, Siemens is a software company looking to stop the unlicensed use of their software, and for this reason, they hired attorney Robert Riddle (more accurately, his firm) to file the Siemens Product Lifecycle Management Software Inc. v. Does 1-100 (Case No. 4:16-cv-01422) lawsuit in the U.S. District Court for the Southern District of Texas.

The weird part for me about this case is that there are so many software solutions out there which would accomplish the result for significantly cheaper.  The Siemens software modules appear to be commercial and high-end, which is more than a typical engineer would need to do their work.

So… what to do now. If you purchased a pirated copy or downloaded an unlicensed copy of the software, all is not lost. This is why you will be hiring an attorney — to speak to your plaintiff attorney and “make it right,” whether that means purchasing a copy after-the-fact, or signing a licensing agreement for the months or years the software was in use.

If you are a business owner, or if the software is in use in your engineering company (or on the laptops of your employees) without authorization, you are the plaintiff’s prime targets, and the licensing strategy will likely be more comprehensive.

If you have absolutely nothing to do with this lawsuit and yet you were implicated as a John Doe Defendant, well, this happens too, and I’d be happy to represent you telling them that there will be no software licensing deal, and that there will be no payment to the plaintiff copyright holders.

The immediate concern is that like all copyright infringement “John Doe” lawsuits, your plaintiff copyright holder has been given permission by a federal judge (here, Texas Judge Keith Ellison) to issue subpoenas to the internet service providers to hand over the subscriber contact information to the plaintiff attorney by or before a certain date.  That date is quickly coming to a close, so this is why you have been trying to contact our firm to figure out your options in how to proceed.  I’d be happy to discuss these with you, obviously time permitting.

OTHER ARTICLES ON THE SIEMENS PLM SOFTWARE CASES:

How an attorney should handle a Siemens PLM Software, Inc. lawsuit, on 1/11/2017.

Siemens PLM NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

Siemens Software Case IS a Bittorrent Case, on 6/20/2016.

What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX), on 1/16/2016.


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.

How CEG-TEK is growing their copyright enforcement business by growing their ISP relationships.

[2017 UPDATE: Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’ competitor.  Since the two entities operate almost the same way, it is good to understand the relationship between a copyright enforcement entity (here, RIGHTS ENFORCEMENT and below, CEG-TEK).]

We already know that it is the business model of CEG-TEK and other copyright monetization companies is to develop relationships with the internet service providers (“ISPs”), and to have them forward copyright infringement / DMCA notices to their subscribers.

I have mentioned this already with regard to the relationships CEG-TEK has with Charter, CenturyLink, and Suddenlink, and as we know, COX Communications, Inc. signed on with CEG-TEK in December of 2015, and has been sending CEG-TEK’s DMCA violation notices to their users.  What we did not notice until now is that Cox Communications has become CEG-TEK’s “golden goose.”

WHY COX IS CEG-TEK’s “GOLDEN GOOSE”:

Why Cox? Because Cox provides its users the same IP address each day. This “one subscriber, one static IP address” trend provides copyright holders and government officials an “ID” of sorts which allows them to identify a particular IP address, watch the activities of that IP address over time as it interacts with different websites (e.g., to see what links that internet user clicks on, to learn where they shop online, what accounts they use, what items they purchase, and what bittorrent downloads they participate in).  Then, when they have developed enough of a profile on that user to convict, they then trace that IP address back to a certain Cox Communications account for prosecution, or in our case, extortion.

For CEG-TEK, they are focusing their efforts on Cox because by doing so, they do not need to obtain from the ISP a past list of IP addresses assigned to that user, and it is very easy for CEG-TEK to go back in time and check their own logs of the past bittorrent swarms to see whether that particular subscriber / IP address participated in any other downloads of their other clients. Some have suggested to me that CEG-TEK can do a search to see what other bittorrent downloads the accused Cox subscriber has participated in. In short, Cox’s “one subscriber, one static IP address” is nothing short of a violation of their subscriber’s privacy, and it is only a matter of time before someone’s IP address gets “followed” and someone gets hurt because Cox is not obscuring the identity of their subscribers.

BRIGHT HOUSE NETWORK IS NOW WORKING WITH CEG-TEK:

Other than Cox, I have recently learned that Bright House Networks (brighthouse.com) is now working with CEG-TEK. I do not yet know in what capacity they are working with CEG-TEK, or in what kind of relationship, but it appears as if they are a new ISP “recruit” in CEG-TEK’s “war” against piracy.

NEW CHARTER COMMUNICATIONS POLICIES AS TO HOW THEY FORWARD DMCA NOTIFICATIONS (THE GOOD AND THE BAD):

For the thousands of you who are Charter subscribers, Charter has recently changed the way they forward the DMCA notices, and this can only be good for subscribers. Instead of forwarding the notices in an e-mail, they are now asking subscribers to “log in” to their website, where only then can then view and copy for themselves a copy of CEG-TEK’s letters.

This is both very good, and bad. On the good side, any “hoops” an ISP makes a subscriber jump through to see the claim(s) against him might annoy the subscriber, but it no doubt infuriates the copyright holders and “monetization” companies (like CEG-TEK) that rely on them seeing their DMCA notices to provide their copyright holder clients their dirty money (I could have said “ill-gotten gains,” but emotionally, calling it “dirty money” seemed to fit better).

THE PROBLEM OF “LOST” DMCA NOTICES:

However, BUYER BEWARE! I have received many calls about people who have physically LOST their DMCA notice because they did not copy it down when they viewed it. And when they called me about it panicked, because I couldn’t see the claims because they did not know who was claiming copyright infringement against them, I couldn’t tell them whether the copyright holder was a “copyright troll” or not, or whether they are suing downloaders in the federal courts. So please, as soon as you access the DMCA violation notices sent to you, either download a copy of it for yourself, or copy-and-paste it into a text file.

GOOGLE FIBER IS A DISORGANIZED ISP WHICH HAS ALSO LOST DMCA NOTICES:

Google Fiber subscribers also — Google Fiber seems to not be organized as to keeping track of the DMCA notices that they are forwarding to their subscribers. So when an internet user inadvertently deletes that notice, it is gone forever. Neither I, nor anyone else can help you fight or settle (or even advise you as to your options) if you accidentally deleted the notice. I suspect that if you are reading this article, it may already be too late.

CANADA — NEW CANADIAN ISP RECRUITS:

Okay, last piece of news and then I need to get back to work. As we know, CEG-TEK has been sending letters for months to Canadians and forcing the ISPs to send these letters to their subscribers under what is known as “notice and notice.” I have written about the problem and the solutions here in my “CEG-TEK: What are your financial risks and considerations of ignoring, settling, or being sued for copyright infringement if you live in Canada or Australia?” article. The news is that just as CEG-TEK is growing their business by signing on new ISPs in the US, this is also true in Canada.

The new Canadian ISPs now working with CEG-TEK appear to be Videotron (a.k.a., Vidéotron), Bell Aliant (www.bellaliant.ca), and Eastlink (www.eastlink.ca) — this will also affect their FibreOP users under the ISP names NorthernTel, DMTS, Telebec (Télébec), and Cablevision. If anyone receives notices from these internet providers, I would like to see them, as I hear that CEG-TEK is not following the notice rules.

As for the older ISP names — Bell Canada, Rogers Cable, Shaw Communications (sjrb.ca), ACN Canada, Electronic Box Inc., TELUS Communications, Start Communications, and TekSavvy, yes, these are still in play. The only one of these that has my respect thus far is TekSavvy which has tried to protect their users by fighting back, but even so, they are still sending CEG-TEK’s DMCA violation / copyright infringement letters, so my respect is limited.


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.

Can I get caught viewing streamed Tube-like videos?

4/5/2017 UPDATE: Okay, this is another way to get caught.

Last month, I wrote an article entitled, “Whether internet porn viewers ‘should expect viewing histories to be made public.”  The fear that prompted that article was that someone could hack into the logs of a porn-streaming website, and with that information, expose the porn viewing habits of millions of Americans.  The conclusion of that article was that it would be difficult for a hacker to hack into a website which streams adult content, steal the website’s logs containing the IP addresses of those who have viewed the web pages which stream the videos, and then somehow correlate that IP address list with the actual identities of the internet users.  Thus, I do not expect to see any Ashley Madison hacks for websites streaming copyrighted content anytime soon.

Can I be sued for viewing adult content on a YouTube-like website?

The next question people asked was, “can I be sued for viewing copyrighted content on a YouTube-like site?”  In short, the answer is yes, you can be sued, but it will likely never happen.  Here’s why:

POINT #1: A COPYRIGHT HOLDER WOULD LIKELY NOT BE ABLE TO OBTAIN THE IP ADDRESSES OF THOSE WHO VIEWED THE WEBSITE STREAMING THE CONTENT.

While a hacker would likely be able to obtain the IP address records from a pornography website’s analytics through theft, a copyright enforcement company such as CEG-TEK or RightsCorp would be unable to get this information without 1) a court order, or 2) the cooperation of the adult website itself.  The reason for this is that 1) porn website owners are notoriously outside the U.S., and thus, they are outside the jurisdiction of the U.S. federal courts.  The copyright holders could try suing the website owners, but this is often a difficult task (finding an elusive website owner outside the U.S. is a much more difficult task than suing internet users who participate in a bittorrent swarm to obtain files using BitTorrent).

While the analytics companies could be sued and forced to disclose the list of IP addresses for a particular website, this is also an unlikely scenario because complying with such a court order directing them to turn over records for one of their clients’ websites could be 1) illegal, and 2) it could put them in jeopardy of being sued by their customer.  So this is not a likely outcome.

Couldn’t the copyright holders provide a financial incentive to the Tube website owners to reveal the IP addresses of their visitors?

Secondly, the copyright holders could “join forces” with the website owners to participate in the financial earnings of going after the downloaders (alternatively, they could be outright paid to disclose this information), but again, doing so would put the websites own visitors (their own customers) in financial jeopardy, and thus they would likely not participate in such a scheme.

In short, it is unlikely that a copyright holder would be able to obtain this needed list of IP addresses of those who viewed certain copyrighted content, and thus, with a streaming site, the copyright holders would likely not be able to learn who you are.

Pornhub has been ordered to expose copyright infringers

[4/5/2017 UPDATE: When I wrote this article, I never expected a federal judge to order a Tube-site to reveal the identity of its users.  Today, a California federal judge judge did just that.  So in the context of this article, the financial ‘incentive’ that I considered a few years ago ended up being the force of a court order signed by a federal judge.  

As described in the TorrentFreak article, Pornhub has been forced to provide the names, e-mail addresses, IP addresses, and other data exposing the identity of uploaders of pirated videos.  These are not downloaders and they likely have accounts, which violates the rule I mentioned in 2015:  “Users who create accounts on Tube Pages are at high risk of being exposed.”]

Why you should use a VPN at all times.

NOTE: It is still advisable to use a VPN when accessing a site streaming content, because your own ISP could be monitoring your web viewing habits, and they ARE in the U.S., and they could be sued and/or pressured to hand over “evidence” that your account visited a particular web page at a certain date and time.  It is unlikely this would ever happen, but it is best to err on the side of caution.

POINT #2: ALL LAWSUITS TO DATE HAVE BEEN FOR BITTORRENT ACTIVITY.  I HAVE NEVER (YET) SEEN A LAWSUIT SUING SOMEONE WHO VIEWED A PARTICULAR VIDEO ON A PARTICULAR WEBSITE.

To date [and as far as I am aware], all of the copyright infringement lawsuits filed in the U.S. District Courts (the federal courts) across the U.S. have been for BITTORRENT ACTIVITY.

With very few exceptions where the copyright holder identified and sued the UPLOADER (the one who POSTED the video onto the website) based on a watermark or secret code embedded into the copyrighted video that identified the accused infringer as being the one who disseminated the copyrighted materials, there has never been a “John Doe” bittorrent lawsuit against a downloader who got caught by viewing content streamed on a YouTube-like website.  This is not to say that there will not be one in the future based on future internet fingerprint IDs forced upon internet users by government entities, or the like.

There are too many steps to obtain visitor information by force from the website owners.

Copyright holders have not yet and likely will never go through the initial step of 1) suing the website owner to obtain the list of IP addresses, and for this reason, I have not seen and do not foresee seeing lawsuits filed against internet users who view copyrighted content using a YouTube-like streaming service.

Laws can change, Technology can make surveillance convenient.

This is not to suggest or encourage that someone use this medium of viewing copyrighted films as technology can change, laws can change, and as the courts loosen their long-arm jurisdiction against foreign corporations and entities (weakening the Asahi case), the United States might start asserting its jurisdictions over foreign countries or foreign entities or corporations, and they might start forcing an internet fingerprint ID on the citizenry to track each citizen’s internet usage.  The takeaway, however, is that it is a lot harder to sue someone for viewing streamed content rather than suing someone for downloading content via bittorrent.

EXCEPTION: Users who create accounts on Tube Pages are at high risk of being exposed.

An obvious exception to this article are those who have created accounts using their real identity or contact information, either 1) to participate or comment on forums or in the comment sections of the websites, or 2) those who pay a monthly or annual membership to access the premium content (e.g., faster speeds, unlimited content, etc.).  If you have an account on a website which streams content, then YES, your identity is at risk, and your viewing habits could be exposed for the world to see.  Otherwise, likely not.


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