What to do when a copyright troll “names” you as a defendant in your bittorrent lawsuit.

I’ve been bumping into more clients than ever who did not retain counsel and have now been “named” as a defendant in their bittorrent case (e.g., they were one of many John Doe Defendants, and now they have been served with paperwork and are now a defendant in their case).  The purpose of this post is to very explicitly state what you are up against at this point (this is for attorneys [unfamiliar with these cases] defending clients as well, as many of you also call me with the same questions as named defendants) and to give you your options.  Here are a few examples of named defendants:

Patrick Collins, Inc. v. John Doe 6, Ching Y., et al. (Arizona U.S. District Court; Case No. 2:11-cv-01602 [or 11-cv-1602]) (1/7/2012)

K-Beech, Inc. v. George H., Shana S., Richard S., Brian T., and Catherine V. (Arizona U.S. District Court; Case No. 2:11-cv-01604 [11-CV-1604]) (originally, K-Beech, Inc. v. John Does 1-54) (12/19/2011).

and K-Beech Inc. v. Derek L.K-Beech Inc. v. Paul F.K-Beech Inc. v. Carl P.; K-Beech Inc. v. Cesar V.; K-Beech Inc. v. Joseph G.; K-Beech Inc. v. Scott S.; K-Beech Inc. v. Hanna B., etc. (each in the U.S. District Court for the Eastern District of Pennsylvania)

In short, my opinion thus far has been that these so-called lawsuits each are pieces of one larger “extortion scheme” where the plaintiff attorneys have acquired your name and contact information (whether through early discovery in a federal court, or a lawsuit in a state court such as Miami Dade, FL, Maricopa County, AZ, or even St. Clair County, IL).  Then they called you and sent you what I described as “scare” letters telling you that if you did not settle by a certain date, they would name you as a defendant (either individually or as a smaller group of Does) in your home state’s federal court.  For whatever reason, you did not hire an attorney and you became what I referred to as “low hanging fruit,” meaning that you became an easy target because by not hiring an attorney, you told them that you are not taking their case seriously and that you probably did not educate yourself about what they could do to you.

Not realizing that the plaintiff attorneys are using the courts and the legal system to further their extortion scheme, you did not realize that these so-called “copyright trolls” could actually follow-up and “name” you as a defendant in your lawsuit.  As far as I’m concerned, it costs them essentially nothing to do this.  They have already sued you as a “Doe” Defendant, and by doing this they have already paid the filing fee.  The complaints are all essentially copies of one another so the paperwork is already written (and if there is a no-name local attorney involved, he has probably been given templates by the Lipscomb & Eisenberg, Prenda Law Inc., or other firm behind the scenes (e.g., if it is a Patrick Collins, Inc. or K-Beech, Inc. case), so naming a defendant is a piece of cake.  The hard part of finding a local attorney in many cases has already been done, and so it is just a matter of “naming” you as a defendant in the lawsuit.  Even Dunlap Grubb & Weaver, PLLC (parading as Media Law Group) has started to hire local counsel and sue dismissed defendants from their many cases from last year.

Many people have asked me whether at this point they can “hide” from the process server so that they are not properly “served.”  Many have also told me “I don’t live at that address anymore,” “I’ve since moved so they’ll never find me,” or “my ISP doesn’t have my correct [NAME SPELLING/ADDRESS/PHONE NUMBER/E-MAIL {pick one}].”  My answer to each one of these is to point out that you are not fighting a traffic ticket… This is a copyright infringement lawsuit in federal court. Whether or not you are guilty, these cases have the ability to broke you (and to potentially seize your assets and force you into bankruptcy).  It borderline offends me when people stick to their “I’m not guilty, they can’t do anything to me” viewpoint because this is simply not true.  The so-called copyright trolls have the power and force of the law to haul you into court and force you to spend tens of thousands of dollars to defend yourself or face a default judgement (essentially a finding of “guilty” because you did not timely file an answer once you were named).

If you are named as a defendant and you avoid service of process (“being served”), there are other ways to serve you.  Depending on the jurisdiction, they can post a notice at your last known address, they can publish a notice in the newspaper… the judge may even allow them to serve you by sending an e-mail to your last known e-mail address.  Don’t think that you are the first person to attempt to outsmart the legal system.  People have tried all these before (and some have even fled the country), and this is why every attorney now learns about the ins and outs of service of process in their first year of law school.

So once you are named as a defendant, depending on your circumstances, the general rule is that you have twenty (20) days to file an answer in federal court.  An “answer” essentially is a denial of their claims, along with all your counterclaims and defenses (remember, if you don’t plead it in your answer, you lose the ability to argue it later).  Fail to file your answer in time and you’ve already lost your case and will be facing a default judgement.  On this note, NEVER rely on a default judgement being $750 plus attorney fees & costs.  I know you have seen those few judgments (e.g., DC’s Call of the Wild Movie, LLC v. Does case) where named defendants didn’t respond and they only got hit with the minimum $750 statutory judgement (but then again, Judge Alsup in N.D. California hit two defendants with $30,000 default judgments each for not filing an answer).  Judgements can be $750, $30,000, $150,000, and based on the sole discretion of the judge, any number in between.  I would never risk my financial future on hoping a judge had a good day.  In short, if you are named and served, you must file an answer with the court.

This is the point where many defendants are when they  contact me.  They believe that they will “fight the good fight” and they will “take these f^%@&!! to court!”  What they don’t realize is that lawsuits cost money and time to fight, and that suddenly it becomes my job to manage their expectations and to explain to them that depositions take time.  Drafting and filing documents take time.  Hearings take time.  And do defendants want a barebones defense? or do they want me to give the plaintiffs hell as well?  This takes more time.  We CAN depose them, take interrogetories, and I’ve always said that with one winning case, we can bring down their whole extortion scheme.  But this all takes…time.  And time costs you money.  So be smart before you declare war on those who have sued you.  There are smarter ways to handle these cases, and so make sure your attorney knows your particular copyright troll, their capabilities, where they will crack, and where they will give in before you decide to step into the courtroom.

Now that you are named (and it took SEVEN PARAGRAPHS to get to this point), realize that your power of negotiating a settlement is severely limited at this point because the plaintiff attorneys have ABSOLUTELY NO REASON TO ACCEPT A SETTLEMENT AT THIS POINT.  I expect they are hoping that you do not hire an attorney and that you try to do this on your own, because if you mess up, they’ve just created a valid judgement against you which they can have the court enforce against you.  Now if you have retained counsel, maybe they *would* decide to settle because as you’re about to see, we’re about to cost them a lot of money.

After we file the answer on your behalf, because their so-called evidence is insufficient to prove that you (and not someone else in your household, or someone using your internet connection living within a 3/4 mile radius [depending on the strength of your router]) downloaded their client’s copyrighted video(s), they will need to hire a digital forensics expert. This is a costly step for them – you do not pay a penny for this — so that they can make a mirror image of your computer(s)’ hard drives and go through them with the equivalent of a microscope to see whether they can find a hint of the file(s) you are accused of downloading.

Assuming they do not find anything incriminating, they will pull you in for a deposition under oath where they will ask you many hours of questions (with me at your side; again, think time) about your bittorrent use, your internet habits and activity, your schedule on the date of the alleged infringement, and anything else they need to establish that it was more likely than not you who did the download.

Again, assuming you are not guilty and assuming you did not say anything incriminating in your deposition, we would likely file for what is known as a summary judgement, essentially telling the judge, “Judge, they looked at my client’s computer(s). They questioned my client. They did not find anything and they have no evidence to move forward. Please dismiss.” Assuming we win, we will ask the court for attorney fees and costs to reimburse you for everything you have paid me. However, remember again, you just spent six months of your life fighting this. Had you contacted me before you were swept into this path of litigation, we could have avoided having you go through this in the first place.

Remember, as much as each of these steps will take time to fight on your behalf (and I’m happy to do this for each one of you), I always tell people that it is important to be practical and smart.  Your plaintiff attorneys are looking at this like a business, and so should you.  I have no doubt they want to spend as little as possible to make the most amount of money from you that they can collect.  As giddy as they may be from getting a $150,000 judgement from you if they took you to trial, chances are they will never see a penny of it.  I have no doubt this is why not one of these bittorrent cases has ever gone to trial.  Your plaintiff attorneys know this, as this was the lesson we learned from the MPAA and RIAA lawsuits from a few years back (where they did bring defendants to trial) — that it is more expensive to get a few large judgments than it is to get many smaller settlements.  If I have not said this loud enough, let me say this explicitly.  Everyone (even each of your copyright trolls and their clients) has a cracking point and a monetary goal (yes, even after naming a defendant).  Your attorney should know 1) how far they are willing to go, 2) how far they have gone before, 3) at what point(s) they would consider a settlement and for how much at each point, and 4) how equipped they are to move forward in case you do decide to  use our firm’s services.   Without an attorney, you’re on your own and they have no reason not to trample all over you and demand as much as they can.  With an attorney, we are too much of a liability (one word from our client and we have no choice but to move forward with litigation) for them not to consider settling (contrary to what they’ll tell you) because we cost them time.

What to do about these smaller Doe bittorrent cases?

The bittorrent cases are speeding up, both in number of cases filed, and in the issues relating to the cases. Judges are smartening up to what is going on, and I am seeing the smaller “Does 1-23” cases ripped to shreds in the courts. But, because they are so small, the activities in each case are falling below the radar.

These smaller cases are now filed in the multiple courts across the country — the correct courts — with the John Doe Defendants often living in the states in which they are sued. Thus, there are no more motion to quash issues, and there are no more “wrong jurisdiction” arguments.

However, while NEARLY ALL the smaller lawsuits still have “improper joinder” issues (meaning, suing Does together in the same lawsuit who did not participate in the same swarm; thus, they did not take part in the same transaction at the same time), THE CASES ARE SIMPLY NOT GOING TO TRIAL and thus defendants are not getting the chance to contest improper joinder.

The problem with these smaller cases is that 1) the settlement amounts are elevated, and 2) the risk of being named as a defendant goes through the roof because all that is required to name defendants in these smaller cases is that the plaintiff merely needs to amend the complaint against a particular Doe (thus the case will change from Patrick Collins, Inc. v. Does 1-30 to Patrick Collins v. “Elliot Hendel” and Does 1-29 [this name is merely fictitious]), and then someone comes knocking at Elliot’s home and serves him a copy of the complaint. At that point if he has not already done so [and he should have hired an attorney immediately upon having notice from his ISP that he was one of the Does in this case], he has to hire an attorney to respond within 20 days with his answer and his counterclaims, or he will default (which means the court can enter a default judgment against him for the full $150,000).

However, the BIG SECRET is that for the most part, these defendants do NOT get named as defendants, and they remain anonymous as far as what is visible from the court’s eyes. Instead, the plaintiff attorneys scare the b’jeebies out of them and cause them in some cases to sign [in many cases] an “I’m guilty, I’m sorry, I’ll never do it again” settlement agreement. The end result is that they end up paying significantly more than they would have if they merely called an attorney and had that attorney negotiate on their behalf. To make matters worse, defendants do not realize that there are really three-tiers of settlement prices (not two) — 1) the plaintiff attorney’s asking price (the “pay us $X by this date or else we’ll name you as a defendant in this case” amount), 2) defendant-negotiated price, and 3) attorney-negotiated price.

When the defendant tries to negotiate his settlement on his own, the likelihood is that he will probably say something incriminating about his case. (For example, not knowing the case law, he may say, “it wasn’t me; it was probably my son — he uses the internet all the time; I keep telling him not to watch that porn,” or “I let my neighbor / son / guest / roommate use my internet,” or “I didn’t realize it was illegal to download — I thought it was only illegal to upload!” etc.) The result is that the plaintiff says, “thank you for telling me you are guilty; the offer is now off the table and I will see you in court <click>,” only to call back shortly afterwards and, in the graces of his heart, he will offer a new settlement amount which is nearly double the asking price of the original settlement amount.

It is not only important to have an attorney negotiate your settlement amount 1) because he can, and 2) he won’t incriminate you while you would likely incriminate yourself, but also, the attorney knows the case law [which is not so obvious], and he knows what to put into a settlement agreement so that the settling defendant does not later get sued for the same claim, attorney fees, etc. It kills me to see so many people turn around and try to settle on their own without reading what they are agreeing to. What burns me more is when attorneys don’t read the contracts they have their clients agree to.

…In short, the plaintiff attorney mops up the floor with the defendants, and many of the defendants (if not most of them) turn over and lay dead while they capitulate and settle their cases. Had they lawyered-up, they would have known how to protect themselves. Better yet, their lawyer would have stepped in their shoes and the plaintiff attorneys would not have even been allowed to contact the defendants in the first place. No letters, no scare tactics; no threats.

Everything being said, one thing that most don’t even bother to find out is who exactly their plaintiff attorneys are. In more cases than not, the plaintiff attorney is merely a guy in a room with a laptop and a phone. Sometimes there is a second lawyer guy in the room making phone calls scaring the defendants into settling — a two-man show. …Do you really think this one or two-man show actually has the ability to sue more than just a few defendants, and if you defendants lawyered-up, do you think the plaintiff attorneys would have the time to name each and every one of you? AND if they named each and every one of you (which is literally impossible because to serve each one of you with service of process would be nearly impossible to track and there are bound to be significant errors), do you think they would have time to respond to each and every one our discovery requests?

As your attorney, when I defend you, I have a duty to properly protect your interests. That means that us attorneys must establish evidence that calls into question their so-called experts’ methods in collecting IP addresses (see here for just a taste). We need to call into question their methods of suing multiple Does in one lawsuit. We need to fight them procedurally with motions to dismiss, motions for summary judgement, and in some cases, motions for sanctions.

Do you think that the one-man show attorney and their underlying plaintiff (too often, the porn production company) can handle the hours of deposition time that EACH OF YOU DEFENDANT would be entitled to? What about their so-called experts? Do you think they have the time to answer all our in-person depositions for each defendant? What about our interrogatories? What about our other discovery motions? Do you really think the one-man show — the attorney guy in the room with a laptop — has the time to spend going after each one of you when he can instead go after the unrepresented defendants who roll over and settle their cases?

To make these cases merely insulting, these plaintiff attorneys have been hiring no-name local-counsel attorneys to file their cases on their behalf (no disrespect to any of them; I understand they are doing it solely so that they can make a commission off of those who settle). As far as I understand, the local counsel often know absolutely NOTHING about these cases, but they talk a big game and then sheepishly refer you to someone else — an “in-house” negotiator, or the attorney behind the curtain — so that they can “close” the deal for them and scare you into settling. If you actually had us attorneys defend your cases rather than merely have us settle them, do you really think the BIG-8 ATTORNEYS (listed below) would have the time and the patience to babysit these local counsel when they ask for assistance after we file our own motions for discovery?

Thus, a client in these smaller Does 1-20 (or 1-50, or 1-80) cases does not need to settle, especially if they do not live in the jurisdiction in which they are sued. This is true regardless of whether the plaintiff attorney is Dunlap Grubb & Weaver (Nicholas Kurtz or Ellis Bennett), Steele Hansmeier (John Steele or Mark Lutz), Gill Sperlein, Ira Siegel, Keith Lipscomb, or even Marc Randazza.

We do know how to defend these smaller cases.