Thousands of John Doe Defendants Quietly Dismissed!

In a flick of the wrist and a slight of hand letter to the court, plaintiffs Dunlapp, Grubb, & Weaver (“DGW”) have possibly dismissed more accused John Doe defendants than ever before in the history of these bittorrent lawsuits. In a letter to the court titled a “Consolidated Status Report Pursuant To The Court’s Direction of 3/1/2011,” the plaintiff attorneys have dismissed* almost every defendant in almost every one of their mass copyright infringement lawsuits.

*I will explain below what I mean by dismissed, because I am not using the term in its conventional use. A more proper term for what they have done is that they have “dumped” these defendants rather than having them dismissed and released from the lawsuit.

The cases in which John Doe defendants have been affected are:

Call of the Wild Movie, LLC v. Does 1-1,062 (1:10-cv-004455-BAH)
Maverick Entertainment Group, Inc. v. Does 1-4,350 (1:10-cv-00569-BAH)
Voltage Pictures, LLC v. Does 1-5,000 (1:10-cv-00873-BAH), and
Donkeyball Movie, LLC v. Does 1-171 (1:10-cv-01520-BAH).

– NOTE: the “BAH” at the end of the case names is a recent change in the case names. When checking your case to determine whether this applies to you, just look at the 1:10-cv-“XXXXX” number and compare it to the case number you received from your ISP to determine whether this is your case.

This is a huge victory to our clients and those of the 10,000+ defendants that have been dismissed. No doubt we will be sending letters of congratulations to our clients in these cases in the coming days.

Now a little about these cases. These were what I like to call the initial “monster” cases, filed by DGW. They were the cases where thousands of John Doe defendants were sued, regardless of whether the courts had jurisdiction or not. These cases were also filed prior to the 6,000 Larry Flint Productions (LFP Internet Group, LLC) cases in the US District Court for the Northern District of Texas and other cases (e.g., Far Cry) were severed and dismissed for improperly joining defendants in one John Doe lawsuit. In addition, these cases were more famously known as “the Hurt Locker” case, “The Call of the Wild” case, among other more famous titles.

As you can read by the filing, the plaintiff attorneys have determined that there is nobody to name in these cases, and thus they have determined to dump the defendant pool as a whole and rethink their strategy.

If you are a former defendant in this case, firstly we congratulate you. This is a big victory. However, with every victory comes a bit of bitterness. Here, the plaintiffs have determined on their own to not proceed with the current pool of defendants, which means that they have a few years from the alleged date of infringement to sue these defendants individually or as smaller groups in their home states.

On top of this, this is not an explicit dismissal, as a voluntary dismissal of all defendants would be. Here, the plaintiff attorneys have simply mentioned that they are not going to “name” defendants (see our article here to understand what it means to be “named”). In addition, it is not an order of severance by the judge dismissing all defendants. It is simply a “heads up” letting the court know they won’t be going after the various defendants.

This is good, with three caveats:

Firstly. Their note only refers to defendants where the ISP has handed their subscriber information over to the plaintiff attorneys. Defendants whose information has not yet been shared (e.g., my more recent clients in the past few weeks) are likely not included in this declaration of theirs because the ISPs have not yet given over their information to the plaintiff attorneys.

Secondly. The plaintiff attorneys can still sue all of these defendants in the US District Courts for the district where the defendants live. (You can read more about the likelihood of them doing this in this article.)

Thirdly. These cases are still alive! After filing this memo, the plaintiff attorneys proceeded to file a memo why a number of motions to quash the subpoena should be denied. They also filed an opposition motion asking the judge to deny these motions to quash. So the cases themselves are still alive and for the time being, well.

In closing. To those John Doe defendants and the Cashman Law Firm, PLLC clients who have been sitting around for months, feel free to breathe easy for now. I will continue monitoring these cases for changes, but you should feel comfortable considering yourselves dismissed. The numbers are certainly on your side and while the risk of being sued individually is always present, the likelihood of hearing from the plaintiff attorneys ever again is very low.

4,437 FAR CRY LAWSUIT DEFENDANTS DISMISSED.

I had a number of clients who were sued by the DGW attorneys for the Far Cry lawsuit. As of today, they are no longer defendants.

Today is a victory that belongs to you, the internet community. You fought against those who used the legal system as a tool to solicit and elicit settlement payments from you without providing evidence to support their claims against you. Today you won.

I anticipate that other cases will have similar results, and that the plaintiff attorneys will regroup and will strategize a new and cost-effective means of moving forward against you. Perhaps they will go after each one of you individually in your own courts. This would be costly for them, and would require that they reach into jurisdictions in which they are not admitted to practice law. Perhaps they will find ways to group future lawsuits into smaller numbers or classes and proceed that way.

However they move forward, we will be there for you.

Warm regards,
Rob Cashman
Cashman Law Firm, PLLC

Being accused of file sharing is NO LAUGHING MATTER.

To my readers:

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.

Warm regards,
Rob Cashman

“What Happens Now That the ISP Subpoena Date Has Passed?” – an update for those accused of downloading illegal movies, music, or software.

One of the interesting niche areas of law that the Cashman Law Firm practices is Cyberlaw, where we protect internet users against companies who accuse them of copyright infringement based on illegally downloaded movies, music, and software.

A few weeks ago, a number of lawsuits have been filed where the plaintiffs (e.g., Lucas Entertainment, Inc.) have filed subpoena requests against a few hundred or in some cases a few thousand potential defendants, amicably called “John Doe #XXX.” Their intent was to have the internet service provider (ISP) turn over their subscribers’ information so that they can contact them directly to elicit a multi-thousand-dollar settlement for the illegal file(s) that were downloaded based on the internet user’s account or IP address.

Many of these subpoena deadlines have since passed, and now internet users who have been caught downloading are asking me what happens now.

Being that a majority of ISPs have clauses since the September, 11th 2001 World Trade Center attacks and the Patriot Act that followed which allow the ISPs to turn over subscriber information to third parties, regardless of the subscriber’s attempts to suppress the subpoena with what is called a motion to quash, it is likely that many ISPs have nevertheless turned over user information to these companies.

The next step is for the movie and music companies to do an analysis of which downloaders are easy targets, e.g., “low hanging fruits,” and which will be more difficult to approach. Because of the high cost in attorney fees in order to track down and contact the accused downloaders, they will likely classify users into groups — those that are unrepresented by an attorney, those that may have a defense (e.g., the download was from a cybercafe or some IP address where they will have difficulty proving that it was that user at that keyboard at that IP address linked to the download of that movie (or music file or piece of software), and last, those that will be difficult to approach [likely because they are represented by an attorney].

Once they are finished with the analysis, the phone calls, letters, and threats will start. They will first call those they believe will not defend themselves and they will collect the maximum settlement amount. Those that pose some threat to them (e.g., they have a defense), they will likely be offered a lower settlement amount (which the attorneys will claim will be significantly cheaper to accept and pay rather than defend themselves in a lawsuit, even if they are found not guilty). Last, but not least, those that are represented by an attorney will likely be contacted last, as the competent cyberlaw attorney will be aware of the law and defenses which would hinder them from collecting a settlement from their clients. Additionally, the attorney will force them to adhere to the law and he will know what acts and statements would be considered deceptive, threatening, or in violation of consumer protection laws. Because the other side knows that they can be quickly and effectively sued by the attorney if they err in attempting to collect a settlement from a potential defendant (and not an actual defendant, because in most cases they will try to extract a settlement without even filing a lawsuit).

This appears to be the state of affairs as they are right now with a number of the copyright infringement cases that are currently in progress. Obviously they could start contacting potential defendants to elicit a settlement as soon as tomorrow, or they could gather evidence and wait until the potential defendant has lost any records of a defense they would have asserted up to the statute of limitations period (this would likely be defendable based on a laches or similar defense). Similarly, they may go after each defendant WITHOUT doing an analysis separating out those that would be difficult to collect from from those who would be easy to collect from. We cannot know what goes on behind closed doors, but this would be bad business for them, so an accused internet user must assume that they will measure his ability to defend himself, and he must assume they will take into consideration whether there is a lawyer defending him or whether he is unprotected.

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