Tag Archives: Motion to Quash

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

Why I love the IGNORE route for our innocent clients.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why the IGNORE route works.

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

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

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

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


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

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Motions to Quash in one page (FAQ); when NOT to file a motion to quash.

What is a Motion to Quash, and how is it relevant in my copyright infringement lawsuit?

The first thing an accused defendant learns when reading the subpoena letter sent to him by his ISP is that:

1) He was implicated as a one of a small set of “John Doe” Defendants in a copyright infringement lawsuit.
2) The copyright infringement lawsuit was filed by a copyright holder apparently owning the rights to a movie he clicked on or downloaded.
3) He is being sued for $150,000 for the download of that movie.
4) He may or may not have actually downloaded that movie.
5) His ISP is being forced by a subpoena ordering them to turn over his true identity (along with other relevant information).

After asking around, he learns:
…6) There is a way to stop the ISP from handing out his contact information, and that is filing an “objection with the court.”
7) The “objection with the court” that he would file is called a motion to quash.

Motions to quash are not the answer, and here is why:

A motion to quash is the first piece of “legal jargon” an accused defendant grasps onto.

The accused defendant thinks, “I am going to quash the subpoena!”  Then the next logical thought is to search the internet for “motions to quash,” or “forms on how to file a motion to quash,” etc.  What that accused defendant gets in the search results is almost never his answer on how to file the motion to quash, but some enterprising attorney who decided that he will use this term to lure him in as a paying client for many months to come.

Faced with the prospect of hiring an attorney to file a motion to quash for him, the accused defendant never asks, “should I file a motion to quash?”

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“Should I file a motion to quash?”

Obviously as an attorney I need to dance around this issue because this blog is not to be considered legal advice.  However, NO, contrary to popular thought and mob rule, it is my belief having defended “copyright troll” bittorrent-based copyright infringement cases for now OVER SEVEN YEARS that motions to quash are not an effective tool for stopping your ISP from handing out your information to the plaintiff attorney.

What exactly is a motion to quash?

Simplifying a bit, a motion to quash in the context of a bittorrent lawsuit tells the court that they do not have “PERSONAL JURISDICTION” over you.  In other words, a motion to quash informs the court that the plaintiff attorney / copyright troll filed the lawsuit against you in the *wrong federal court* (and plaintiff attorneys have been forced to reimburse the ISPs for making this mistake).

[The actual context is that this would be a motion to quash (or nullify) the subpoena which is forcing the ISP to hand over your information.  The attack itself is on the validity of the subpoena, not the copyright troll or the plaintiff.]

The question a judge must determine when faced with a motion to quash is “does this John Doe Defendant live in the jurisdiction or territory in which my federal court has power and control to enforce the laws over that defendant?”

When is a motion to quash successful?

A motion to quash is successful if the accused John Doe defendant filing the motion to quash lives in a state OTHER THAN where the lawsuit was filed.  For example, an accused defendant who is living in New York, and not in California where the lawsuit was filed), then the California federal judge will sever and dismiss that defendant from the lawsuit.  The motion to quash the subpoena as to that John Doe Defendant will be successful, and the ISP is released from its obligation to hand over the information for that John Doe Defendant to the plaintiff attorney.

The dismissal will be, however, “without prejudice,” meaning that the copyright holder will still have three (3) years from the alleged date of infringement to sue that defendant in the federal court of the state in which he or she lives.

When is a motion to quash not successful?

A motion to quash a subpoena is not successful when the accused “John Doe” defendant lives in the state in which he was sued.  Here, the judge will determine that the federal court has personal jurisdiction over that defendant, and the motion to quash will likely be denied.

The effect of this is that as soon as a motion to quash is denied, the internet service provider (“ISP”) [who initially held back that accused defendant’s contact information from the spreadsheet of names and addresses provided to the plaintiff attorney] will now separately comply with the subpoena as to that John Doe Defendant who filed the motion to quash and lost.  Think of this as the ISP sending that defendant’s contact information in a FedEx package to the plaintiff attorney stating, “this is the guy who filed the motion to quash and lost.”

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Isn’t it illegal for the ISP to hand out my information?  Can I sue my ISP if they comply with the subpoena?

This is actually an interesting topic which I first researched many years ago.  The answer is that it depends on whether the federal judge in your case considers the ISP to be under the rules of the Cable Act or not.  You would think this is an easy answer, “yes or no, does an internet service provider fall under Title II of the Communications Act of 1934?” but judges in the bittorrent copyright infringement cases have had different opinions of this over the years.

Unrelated to the very muddy area of under which Title of the Communication Act do ISPs fall, this issue has become relevant to our Cashman Law Firm, PLLC practice in defending bittorrent defendants.  The reason for this is that a cornerstone part of our strategy is not only understanding the personality and proclivities of the plaintiff attorney (will he name and serve, what are his motivations, etc.), but also to understand how each federal judge sees the validity of the bittorrent-based copyright infringement cases.  Judges who quote a certain set of case law (which places the ISPs in the context of being under the Cable Act) or who quote Arista Records LLC (sorry for the Wikipedia link) are usually plaintiff / copyright holder friendly.  Those that do not are more “John Doe” Defendant friendly.

Anyway, in 2011, I once looked into suing an ISP for disclosing the identity of a John Doe Defendant, and I was hit with a wall of messy, disorganized law with inconsistent case law rulings on this topic (whether ISPs fall under the Cable Act, whether they are to be considered under Title 2 of the Communication Act, or under some other classification).  In short, even if I were successful, in the end, the defendant would have only had damages of $1,000, so it made no sense to fight the lawsuit (the time alone to file it would have cost the defendant the slap-on-the-wrist money he would have made from being right).  Anyway, just a fun tidbit.

The plaintiff attorney’s response to a motion to quash

Historically, the plaintiff attorney who sees an accused John Doe Defendant file a motion to quash will claim that the defendant lacks “STANDING” to file the motion to quash.

He will claim that the John Doe filing the motion to quash was never named and served in the lawsuit (and might never be named and served).  They will point out to the court that the purpose of the “JOHN DOE” placeholder, by definition, is that this is an unnamed defendant.  In order to determine who the actual defendant-to-be-named is in the lawsuit, they need the subscriber’s identifying information to determine whether this subscriber was the downloader or not.

[A plaintiff attorney deciding to “NAME AND SERVE” a defendant is outside the scope of this article.  For more information on what to do when you are named and served, click here.]

As a result, federal judges sometimes buy this argument and they deny the motion to quash, or they find some other justification to deny the motion to quash.

A quick comment about the personalities of the plaintiff attorneys who represent the copyright holders:

Plaintiff attorneys / “copyright trolls” have a bad reputation because they have been known to incorporate their personal hurt feelings and egos into the prosecution of their client’s cases.

The purpose of a “copyright troll” / bittorrent-based copyright infringement lawsuit is to extract as many multi-thousand dollar settlements as possible in return for the $400 filing fee their client paid to file the lawsuit.  Most of these attorneys work on a commission basis, so the time they spent “fighting” the case is court is wasted time.

When a defendant files a motion to quash, this forces the plaintiff attorney to oppose the motion to quash.  Following most oppositions comes a hearing (which sometimes takes up the entire morning, even though the hearing itself on the motion to quash is 5 minutes long).

Thus, any defendant who files the motion to quash ends up with a vindictive attorney who is looking to recoup that time lost in dollars and commissions.  This translates into an overly hostile or vindictive attorney who increases the settlement price to “nail” that defendant who filed the motion to quash.

Instead of a motion to quash, what should the first step of defense be?

Great question.  Rather than jumping to file a motion to quash, the accused “John Doe” defendant needs to figure out whether he actually downloaded the movie that is the subject of the lawsuit.  Next, whether he downloaded it or not, he needs to speak to an attorney to determine what his options are.

Most attorneys who understand that motion to quash attempts are usually unsuccessful will instruct the client to forego filing the motion to quash, and to move right into defending the claims against the client.

There is a long period of time in which the “John Doe” defendant remains anonymous.  During this “John Doe” phase, the anonymity of the accused John Doe Defendant is preserved.  Hiring an attorney at this point (before being named and served) provides you with so many more options than you might have after being named and served.  During this time, your plaintiff attorney has a window in which he can investigate whether each accused downloader actually downloaded the file or not; he purportedly does this in order to determine which John Doe Defendants to name and serve, and which not to name and serve.

Really, this is the bulk of where the bittorrent-based copyright infringement lawsuits spend their time.

During this “John Doe” phase of the lawsuit, the courts issue FRCP Rule 4(m) extensions over and over until the judge forces the plaintiff attorney to name and serve some defendants or stop wasting the court’s time.  During this time, an attorney defending a John Doe Defendant has the opportunity to obtain whatever evidence the plaintiff attorney has on that defendant, and he has the opportunity to explain that it was not the accused John Doe Defendant who did the download.

If the client actually did the download, the defense attorney has other tools at his disposal (e.g., the “no settlement” route, the “ignore” route, or the minimum statutory damages strategy, if the plaintiff attorney names and serves the defendant or otherwise won’t negotiate a settlement).  Obviously, negotiating a settlement for a defendant who actually did the download is usually the quickest way out of the lawsuit (watch out for settlement factory attorneys and so-called defense attorneys who actually represent the copyright holders (“weretrolls”), but it perpetuates the whole copyright troll scheme.

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Why FIGHTING the case is not the best answer either (even with an innocent defendant).

Lastly, there is always the option to “FIGHT,” or litigate and defend the claims against you, like a hero slaying a “copyright troll” dragon (I did not make up that analogy).  However, there are bad attorneys here too, because they really want you to pay them an hourly fee for the next few hundred hours.

They’ll claim that they are defending your case because the copyright holder does not actually have evidence of copyright infringement (which is true — what they actually have is called “snapshot evidence,” which is not copyright infringement).  They will also explain that copyright law gives the prevailing party (the “winner”) the attorney fees they paid to their attorney.

Thus, they can spend $20K-$30K on the litigation, and they’ll recoup it from the copyright troll when they win their case, right?? Wrong.

Copyright Troll / Plaintiff Attorneys know EXACTLY WHEN to dismiss an innocent defendant to avoid having to pay attorney fees.

The plaintiff attorneys are very aware of the attorney fees which are awarded to the winner of the lawsuit.

Thus, they know EXACTLY WHEN to dismiss an accused defendant (usually after being named and served, right after discovery (think, depositions, interrogatories, evidence gathering, and questions under oath, etc.) once the defendant establishes that he actually did not do the download).

This means that the plaintiff attorney deprived the wrongly accused “innocent” defendant of ALL the money and months of anguish he paid to his defense attorney.

The defendant is dismissed, taking nothing back for his losses.  However, the defense attorney sits there fat and piggish having taken every penny the named defendant had.

Chances are, that attorney never explained to the named defendant that such a dismissal could happen, or else the defendant may have chosen to settle early on (and the defense attorney would have made significantly fewer dollars in fees).

Why FIGHTING based on the argument that the plaintiff attorney has no evidence is also dumb.

This deserves to be its own post, but I’ll get straight to the point.  Representing a client who did the download based on the argument that the plaintiff attorney has no evidence is foolish, and here is why:

Even if I were to charge a defendant only $100 to defend the claims against him (if I said pro bono or no fee), and I defended that client on the basis that the plaintiff attorney had no evidence against my client [based on the “snapshot evidence” theory]:

*EVEN IF I AM RIGHT* (that “snapshot evidence” is insufficient to prove copyright infringement), MY OWN CLIENT WHO DOWNLOADED THE MOVIE WOULD BE THE ONLY EVIDENCE THE PLAINTIFF ATTORNEY WOULD REQUIRE TO PROVE COPYRIGHT INFRINGEMENT.

Why?  Because after being named and served, there is something called “discovery,” where among other things (such as having a computer forensics expert check the computer for the infringing copyrighted title), my own client would be forced to answer questions under oath, AND ONE OF THOSE QUESTIONS WOULD BE, “DID YOU DOWNLOAD THE XYZ FILE USING BITTORRENT?”

At that point, once your client admits guilt in a deposition, or otherwise under oath, there is nothing to do but to settle.  Snapshot evidence at that point becomes irrelevant to whether this defendant downloaded the film.

As one attorney cleverly said it, I believe today on Twitter:

“I can be the most educated, smartest, wizardly genius attorney ever to exist.  No legal argument can change the fact that my client downloaded the film.”

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IN SUM, INSTEAD OF THE MOTION TO QUASH, CONSIDER YOUR CASE.

Thus, for someone who received notice that their ISP is handing out their information to the plaintiff attorney, don’t worry about the motion to quash.  Ask yourself whether you recognize the movie you are accused of downloading, and whether you downloaded or watched the movie without a license (e.g., with bittorrent, or with Popcorn Time, etc.).

Whether the answer is yes or no, don’t wait.  Hire an attorney, explain your situation, and let the attorney either 1) convince the plaintiff attorney that you did not do the download or will not otherwise settle (a.k.a., the “no settlement” representation), or 2) have the attorney settle the claims against you.

This time while you are an “anonymous” John Doe is precious to you; don’t squander it.

Fighting (defending the claims against you in litigation) only makes sense when 1) you understand that EVERYTHING YOU PAY YOUR ATTORNEY TO DEFEND YOU WILL BE LOST, but you do not want to give in and settle the claims against you, and 2) when you want your attorney to file an answer, admit guilt, and argue $750 minimum statutory damages (when you did the download and the plaintiff attorney is unwilling to settle or negotiate fairly).

All other times, one of the “ignore” routes or “settle” route is the more economical approach.

THIS HAS BEEN A LAWSUIT-NEUTRAL ARTICLE WRITTEN FOR THE TORRENTLAWYER UNIVERSITY.

FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your matter, 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: Alternatively, sometimes people just like to contact me using one of these forms.  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.

…OR, SKIP TO THE APPOINTMENT…

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.

ME2 Productions Inc. Subpoenas FAQ | What You Need to Know

While our law firm represents ME2 Productions, Inc. defendants as clients in a number of states (specifically, those states in which we can ‘pro hac’ into and represent a defendant should settlement negotiations go awry), I simply cannot track every single bittorrent-based lawsuit that is filed across the U.S.   However, I do know of subpoenas received by John Doe Defendants in a number of cases are due today.

This article should be a simplistic “what do I do” article.  Nothing new will be introduced here for those of you who have read my blog in the past.  At best, this will be a quick refresher of what happens at the pretrial stages of a copyright infringement lawsuit before a John Doe Defendant is named and served.

Because I am neck deep in cases, instead of writing out this article, I am dictating it into a recorder and am paying someone to transcribe it for me. Thus, pardon the conversational tone.  This is really the way I speak.

[Lastly, some of you have e-mailed me asking why I am only making 2-3 time slots available each day on the https://www.torrentlawyer.com/calendar/ scheduling site when there are literally hundreds of John Does affected by these lawsuits.  The simple reason is because I am managing the firm’s inflow of clients (I will not take every client I speak to, but I will hold your hand until you find an attorney), and I do not believe in flooding our firm with 100+ new clients for one copyright holder and treating them all the same way in a turn-key fashion.  I used to think that this could save our clients money, but my experience after representing clients is that if I am able to take each client separately and negotiate each client the best I can, I am often able to get the client released from liability without paying any settlement (if the client did not do the download), and if they did the download, I am able to negotiate significantly lower settlements when I handle client circumstances individually rather than as a group.]

ME2 LAWSUIT SUBPOENA Q&A:

Question: “I received a subpoena from my ISP about the ME2 Productions, Inc. v. Does lawsuit.  What do I do?”

Answer: Chances are the lawsuit was filed in the state in which you live.  If you live outside of the state in which you were sued, that federal court likely does not have “personal jurisdiction” over you.  For circumstances like this, you may consider filing a motion to quash.

SHOULD I FILE A MOTION TO QUASH?

Question: “Should I file a motion to quash even though I have been sued and I live in the state?”

Answer: If you file the motion to quash, the court will set a hearing in order to determine whether they have personal jurisdiction over you.  The judge will ask whether you live in the state.  If the answer is “yes,” then motion to quash will likely be denied.  I’m simplifying, but this is the point.

NOTE: For accuracy, you were not sued.  You are at this point merely implicated as a “John Doe” Defendant, which means that your Comcast ISP (or whatever ISP you have) has identified you as being the account holder who was assigned an IP Address (e.g., 123.848.245.163), and that IP Address was ‘seen’ or ‘caught’ participating in a bittorrent swarm where the download allegedly happened.

Question: “ABC Lawyer told me that even if I live in the state where I was sued, I can still hire an attorney who will file a motion to quash for me for $2,500 where he will expose the copyright trolls’ scam and maybe cause the judge to dismiss the case.  Should I pay for one of these?”

Answer: The motion to quash is not the proper place to raise issues relating to the actions of the copyright holders.  Filing long-winded motions to quash will simply prompt the judge to ask, “yes or no, does your client live in this state?”  When the answer is yes and your lawyer turns to you and informs you that “your motion to quash failed,” you’ll realize that you wasted your money.

There are other procedural times to fight your case, especially if you did not do the download.  Fighting your case in the motion to quash is generally a really bad idea.

Question: “Who cares if I was ‘seen’ downloading?  Doesn’t everyone use bittorrent anyway? Why is this illegal?”

Answer:  The short answer is that downloading and piracy is socially acceptable as a ‘tolerable evil’, but it is still nevertheless illegal.  It took me a few tries to answer this question, and in trying, the following two blog articles came of it:

1. ‘The boot of government crushes the skull of its citizen’ when it comes to encryption and anonymity, and

2. The Evolution of Piracy and the ‘coincidence’ that early copyright cases were rooted in pornography-based content.

In sum, copyright holders are finicky about whether, how, and in which way they will allow their copyrighted film to be shown.    Copyright law, as encoded in 17 US Code § 106 describes a number of exclusive rights given to a copyright holder (which means that the copyright holder is given authority to legally sue and destroy the financial futures of anyone who violate and/or infringe those rights).  Of those exclusive rights (the right to make copies (download), the right to distribute copies (share/upload), the right to display (stream), if any of these are infringed, the copyright holders get antsy because each violation of these rights stops them from being able to profit from the movie (or ‘work’) they created.

The peer-to-peer networks have been a source of angst for the copyright holders because until now, each of these ‘exclusive rights’ are taken out from the control of the copyright holder, and are given to the internet users.  When movies are listed on a bittorrent website and are downloaded, the copyright holders do not profit from the piracy, and while there has been some considerable debate of whether movie companies actually lose money from piracy (I am on the side that their ticket and DVD sales and licensing fees are hurt by piracy, but the damage is not as exaggerated as they claim it to be), but as a result of the loss (perceived or not, real or not), today copyright holders to consider it ethical to sue end user downloaders for the full $150,000 statutory damages for the download of one movie.

My opinion is that suing downloaders is misguided solution to the piracy problem, and that a better solution would be either compulsory licensing from the ISP, or simply providing better competitive solutions to give internet users the ability to PAY for access to cable TV and traditional TV networks (without paying the inflated cable bill prices they are still trying to charge).

Question: “Before Comcast hands out my information, am I still anonymous?  If as a John Doe I am not yet a defendant in the case, at what point do I become a defendant?”

At this point, your plaintiff attorney does not have your name, and neither does the court.  At this point, you are also still anonymous, which means that other than the filing fee, the plaintiff attorney has not yet spent any money or time investigating you or your involvement in the lawsuit.

You do not become a defendant until you are ‘named and served.’ This would happen later on in the lawsuit after the plaintiff copyright attorney tries to 1) convince you to settle, or 2) they are unable to contact you, or 3) they have formed a belief that you (the ISP subscriber) are the downloader.

Once someone knocks on your door and serves you with a copy of the complaint (or once you are served by a number of other methods), only then do you become a defendant in the lawsuit.

IS COMCAST (OR MY ISP) FORCED TO COMPLY WITH THE SUBPOENA?

Question: “Can I call Comcast (or my ISP) and tell them I object to them sending out my information?  Isn’t giving out my information a crime?”

Answer: Comcast is under a duty to comply with the subpoena, which was ordered and signed by the federal judge for your case.  The ISP can and does often ignore the deadline set by the attorney in the subpoena sent to the ISP [they comply whenever they decide to comply, and if the plaintiff attorneys don’t like it, they can sue them or bring them into court, but they almost never do], but the ISPs almost always comply.

Even if you call your ISP and complain, and even if you object to them sending out your information, they will tell you that they must comply and that they WILL comply unless you file an objection with the court.  This objection is the motion to quash we discussed before.

There was a time when these bittorrent-based ‘copyright troll’ lawsuits were new (back in 2010), and there was a time that I researched whether a subscriber can sue his ISP for sharing his information with the copyright holders over his objection.  I even considered representing John Doe Defendants at the time as a class action lawsuit against the ISPs, however, the case law was horrible, and the damages weren’t worth the time or money the clients would have paid in order to sue their ISPs.

100% ANONYMOUS SETTLEMENTS BEFORE ISP COMPLIES WITH SUBPOENA?

Question: “Should I have my attorney contact the plaintiff attorney before he gets my identity from my ISP?  Can I settle with the plaintiff attorney and stop my Comcast ISP from divulging my identity to the plaintiff attorney?”

Answer: Generally, this is not required.  I have had circumstances that the defendant ABSOLUTELY wanted to keep his involvement in a lawsuit ANONYMOUS, and in cases such as this one [where the defendant had something to lose if the plaintiff attorney learned his identity], then yes, I could negotiate a 100% anonymous settlement before the ISP hands out the John Doe’s information to the plaintiff attorney.  I can even stop the ISP from complying with the subpoena.  How??

I have been successful asking various plaintiff attorneys to write or transmit a letter to the ISP and cancel the subpoena as to that particular John Doe Defendant, and both the paid attorney and the ISP happily complied, and my client remained 100% anonymous.  Win-win.  The client remained anonymous, the ISP had one fewer infringement file to take care of, and the pocket-filled plaintiff attorney saved an extra few bucks because he did not have to pay the ISP for the IP address lookup for that John Doe Defendant (sometimes ISP charge plaintiff attorneys large sums of money to lookup and handle the files of each of the John Doe Defendants).

However, one thing that is LOST when negotiating BEFORE the ISP hands over your information is LEVERAGE.  If the John Doe approaches the attorney asking to be anonymous, the plaintiff will want to know, “what does he have to hide?”  In addition, because any anonymous negotiations will arouse suspicion in the eyes of the plaintiff attorney, they might be less willing to negotiate down the price in a settlement negotiation when they sense that the other side has something to lose by having their name exposed to him/her.  We can still do the settlements anonymously and clients still do request this, but be aware that leverage is lost when premature negotiations are made, and thus the cost of the settlement to the copyright holder may be higher than the ordinary negotiation.

WHAT HAPPENS AFTER COMCAST COMPLIES WITH THE SUBPOENA?

Question: “Do I become a defendant in the case after my ISP complies with the subpoena and hands out my information to the plaintiff attorney?”

Answer: Again, no.  As far as the court is concerned (and as far as the world is concerned), nobody except you, your ISP, your attorney, and the plaintiff attorney know your name.  Robots and spiders who like to ‘spider’ legal sites and post information on the parties of the cases also cannot know who you are, even after the ISP complies with the subpoena.

Rather, when the ISP complies with the subpoena, likely, they will send over a spreadsheet 10-20 lines long (depending on how many John Doe Defendants there are in the case), and you will be one of those ‘lines’ on the spreadsheet.  The plaintiff will learn who you are, but you will remain an anonymous John Doe Defendant until the plaintiff attorney decides to name and serve you.

When the plaintiff attorney receives the list of names and contact information for each John Doe Defendant, he will separate that pile of names into two piles: 1) subscribers that are represented by attorneys (where their attorneys sent a ‘notice of representation’ to that attorney), and 2) subscribers who are not represented by an attorney.  The experience of the ‘Subscribers who are not represented by attorney’ has best been described to me like ‘being called by a horrible creditor for a debt; only that creditor is an attorney and could ruin my life.’

Question: “Will the ‘copyright troll’ attorney contact me to extort a settlement?”

Answer: Funny enough, likely not.  Attorneys have gotten reprimanded by the courts in recent years for abusive practices such as sending settlement demand letters (I used to refer to them as ‘scare’ letters because their purpose was to frighten and scare the defendants into paying the requested settlement amount).  So rather than saying, “we want $6,000 for so-and-so title (or whatever they are asking),” the plaintiff attorneys will simply state that they have every intention of moving this case to trial, and if the defendant or his/her attorney wants to discuss settlement options, they are more than willing to cooperate.

So no, they will likely not try to contact you.

Question: “If they do not contact me, should I just ignore and do nothing until they name and serve me?”

Answer: Waiting to be named and served is a DANGEROUS legal strategy, for the simple reason that you are thrust into the “fight” option where you are forced to either spend tens of thousands of dollars to some defense attorney to litigate the case for you, or you have committed yourself to become a legal expert unrepresented “pro se” defendant.

If you have any intention of keeping your identity private, it is best to have your attorney negotiate the release of your “John Doe” placeholder entity WHILE YOU ARE STILL A JOHN DOE.  As soon as you are named and served, your identity as being involved in a copyright infringement lawsuit will become public, even if your attorney convinces the other side that you are not the downloader.  And, even if you ended up paying a settlement amount in lieu of litigating the claims against you, if you do so after you are named and served, your identity will become public knowledge and ‘there is no way to put that genie back in the bottle once it’s out.’

Point in sum. It is *almost ALWAYS* better to have your attorney proactively contact the plaintiff attorney before you are named and served.  That way, if a release based on non-guilt is negotiated, it will be done anonymously.  If a settlement is reached, then it will be done without the world learning that you were part of a copyright infringement lawsuit.

WHO IS THE ATTORNEY SUING ME?

TEXAS CASES: Gary Fischman (Fischman Law PLLC)

NOTE: Gary Fischman is the same attorney who is suing defendants in the I.T. Productions LLC cases, the September Productions cases, Cell Film Holdings cases, and Fathers & Daughters Nevada cases.  He is often seen filing lawsuits in conjunction with Josh Wyde.

(I will obviously update this for other states.  For the moment, I have been representing clients in the Texas Southern District Court (TXSD) because our Cashman Law Firm, PLLC practice is physically located in Houston, Texas.)

SUMMARY: ME2 SUBPOENAS DUE TODAY.

I could go on forever with these questions and answers, but the point is that your plaintiff attorney will likely be getting your contact information today for a number of the ME2 Productions, Inc. lawsuits in various states, and the reason for this is because your ISP (primarily, Comcast) is coordinating the compliance with the subpoena by bunching the various subpoenas together and handling them all at the same time.

Thus, expect that tomorrow, your respective ‘copyright troll’ plaintiff attorney will begin calling you, and from there, the process continues as I described above.


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.

RECENT CASE HISTORY OF THE ME2 PRODUCTIONS, INC. CASES:

Cases filed in the Texas Southern District Court [2017 cases]:
Attorney: Gary Fischman (Fischman Law PLLC)

ME2 Productions, Inc. v. DOES (Case No. 4:17-cv-00501)
Filed: Feb 15, 2017, Judge: TBA

ME2 Productions, Inc. v. Does 1-12 (Case No. 4:17-cv-00404)
Filed: Feb 09, 2017, Judge: TBA

ME2 Productions, Inc. v. DOES (Case No. 4:17-cv-00275)
Filed: Jan 27, 2017, Judge: TBA

ME2 Productions, Inc. v. Does (Case No. 4:17-cv-00143)
Filed: Jan 17, 2017, Judge: TBA

Cases filed in the Nevada District Court:
Judges include Judge Andrew Gordon, Judge James Mahan, Judge Jennifer Dorsey, and Judge Richard Boulware II — Judge Mahan and Judge Gordon have most of the cases:

ME2 Productions, Inc. v. Does (Case No. 2:16-cv-02783)
The following cases also filed as ME2 Productions, Inc. v. Does:
Case No. 2:17-cv-00114
Case No. 2:16-cv-02563
Case No. 2:16-cv-02513
Case No. 2:16-cv-02799
Case No. 2:17-cv-00121
Case No. 2:17-cv-00126
Case No. 2:17-cv-00122
Case No. 2:16-cv-02657
Case No. 2:16-cv-02384
Case No. 2:16-cv-02520
Case No. 2:17-cv-00124
Case No. 2:17-cv-00123
Case No. 2:16-cv-02662
Case No. 2:16-cv-02788
Case No. 2:16-cv-02875
Case No. 2:16-cv-02660
Case No. 2:17-cv-00049

Cases filed in the North Carolina Eastern District Court:
Judges include Judge Louise Wood Flanagan, Judge Terrence Boyle, Judge W. Earl Britt — Judge Flanagan is the lead, as she has most of the cases and is in charge of the 5:16-cv-914 case into which the others have been consolidated, so watch her rulings to understand how ‘bittorrent’ law is about to evolve in North Carolina:

ME2 Productions, Inc. v. Doe 1, et al (Case No. 5:16-cv-00881)
ME2 Productions, Inc. v. Doe 1, et al (Case No. 5:16-cv-00885)
ME2 Productions, Inc. v. Doe 1, et al (Case No. 4:16-cv-00273)
ME2 Productions, Inc. v. Doe 1, et al (Case No. 5:16-cv-00896)
ME2 Productions, Inc. v. Does 1-8 (Case No. 5:16-cv-00914)
ME2 Productions, Inc. v. Does 1-9 (Case No. 7:16-cv-00385)
ME2 Productions, Inc. v. DOES 1-10 (Case No. 7:16-cv-00386)
ME2 Productions, Inc. v. Does 1-8 (Case No. 7:16-cv-00384, CONSOLIDATED into 5:16-cv-00914-FL)
ME2 Productions, Inc. v. Does 1-16 (Case No. 7:16-cv-00394)
ME2 Productions, Inc. v. Does 1-16 (Case No. 4:16-cv-00279)
ME2 Productions, Inc. v. Does 1-9 (Case No. 5:16-cv-00875)
ME2 Productions, Inc. v. Doe (Case No. 7:16-cv-00383)
ME2 Productions, Inc. v. Does 1-13 (Case No. 4:16-cv-00278)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 5:16-cv-00917)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 5:16-cv-00920)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 5:16-cv-00922)
ME2 Productions, Inc. v. Does (Case No. 5:16-cv-00202)
ME2 Productions, Inc. v. Does (Case No. 5:16-cv-00206)

Cases filed in the Colorado District Court:
Judge Wiley Y. Daniel has ALL of the bittorrent cases. Watch his ruling because the ME2 cases might affect Colorado ‘bittorrent’ law.

ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:17-cv-00170)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:16-cv-02978)
ME2 Productions, Inc. v. John Does 1-20 (Case No. 1:16-cv-03005)
ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:16-cv-03069)
ME2 Productions, Inc. v. John Does 1-24 (Case No. 1:16-cv-03128)
ME2 Productions, Inc. . v. Doe 1 et al (Case No. 1:17-cv-00301)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:17-cv-00387)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:17-cv-00033)
ME2 Productions, Inc v. John Does 1 – 11 (Case No. 1:16-cv-02770)
ME2 Productions, Inc v. John Does 1-21 (Case No. 1:16-cv-02788)
ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:16-cv-02827)
ME2 Productions, Inc v. John Does 1-10 (Case No. 1:16-cv-02891)
ME2 Productions, Inc. v. Doe 1 et al (Case No. 1:16-cv-02580)
ME2 PRODUCTIONS, INC. v. Doe 1 et al (Case No. 1:16-cv-02629)

Cases filed in the Washington Western District Court:
Judge Robert Lasnik appears to be in control of all of the bittorrent cases thus far (a number of them are still ‘TBA’, but I suspect they will go to Judge Lasnik). Watch his ruling on any of these cases, because a ruling on one of these cases will likely affect ALL of the other bittorrent cases in the Washington Western District Court.

ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01882)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01881)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01953)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01955)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01950)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01776)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:16-cv-01778)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00181)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00182)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00099)
ME2 Productions, Inc v. Doe 1 et al (Case No. 2:17-cv-00100)

Cases filed in the Indiana Northern and Southern District Courts:
These cases appear to be assigned to judges in a rotating fashion, and thus, while Judge Theresa Springman (in the Indiana Northern District) and Judge Larry Mckinney (in the Indiana Southern District) each appear to have three (3) cases each, there appears to be no leadership by either judge as to directing the Indiana court as to how or whether these cases will affect ‘bittorrent’ law.

ME2 Productions, Inc. v. Does 1-8 (Case No. 1:16-cv-00390)
ME2 Productions, Inc. v. Does 1-9 (Case No. 3:16-cv-00764)
ME2 Productions, Inc. v. Does 1-10 (Case No. 3:16-cv-00695)
ME2 Productions, Inc. v. Does 1-9 (Case No. 2:16-cv-00468)
ME2 Productions, Inc. v. Does 1-12 (Case No. 2:16-cv-00478)
ME2 Productions, Inc. v. Does 1-11 (Case No. 3:16-cv-00697)
ME2 PRODUCTIONS, INC. v. DOE 1 et al (Case No. 1:16-cv-03020)
ME2 PRODUCTIONS, INC. v. DOE 1 et al (Case No. 1:16-cv-02757)
ME2 PRODUCTIONS, INC. v. DOE 1 et al (Case No. 1:16-cv-02758)

Cases filed in the Arizona District Court:
These cases also appear to be assigned to judges in a rotating fashion, however, it is appearing that Judge Diane Humetewa is taking on more bittorrent cases than any of the others. So watch her court for leadership moving forward.

ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00210)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04039)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04075)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04114)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04112)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:16-cv-04123)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00216)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00217)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00218)
ME2 Productions Incorporated v. Unknown Parties (Case No. 2:17-cv-00222)

Cases filed in the New York Eastern and Southern District Courts:
NOTE: Single “John Doe” cases are being filed here. Warning!

ME2 Productions, Inc. v. Doe – 24.44.105.211 et al (Case No. 1:16-cv-06161)
ME2 Productions, Inc. v. Doe – 68.194.38.87 et al (Case No. 1:16-cv-06160)
ME2 Productions, Inc. v. Doe(s) – (Case No. 1:17-cv-00929)
ME2 Productions, Inc. v. Doe – 74.71.172.215 et al (Case No. 1:17-cv-01049)

Cases filed in the Oregon District Court:
Again, warning! These are single-doe cases.

ME2 Productions, Inc. v. Doe-76.27.219.56 (Case No. 3:16-cv-01724)
ME2 Productions, Inc. v. Doe-73.164.239.74 (Case No. 3:16-cv-01725)
ME2 Productions, Inc. v. Doe-24.21.195.166 (Case No. 3:17-cv-00158)

OTHER CASES (WITHOUT COMMENT):

Cases Filed in the Connecticut District Court:
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01834)
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01835)
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01837)
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-01838)

Cases Filed in the Georgia Northern District Court:
ME2 Productions, Inc. v. Does 1-13 (Case No. 1:16-cv-03904)
ME2 Productions, Inc. v. Does 1-12 (Case No. 1:16-cv-04054)
ME2 Productions, Inc. v. DOES 1-11 (Case No. 1:16-cv-04208)
ME2 Productions, Inc. v. DOES 1-11 (Case No. 1:16-cv-04052)
ME2 Productions, Inc. v. DOES 1-11 (Case No. 1:16-cv-04210)
ME2 Productions, Inc. v. Does 1-9 (Case No. 1:16-cv-04207)
ME2 Productions, Inc. v. Doe 1 (Case No. 1:16-cv-04055)

Cases filed in the Illinois Northern District Court:
(Think, John Steele / Prenda Law Inc. / Steele|Hansmeier / #Prenda old territory.)
ME2 PRODUCTIONS, INC. v. DOES 1-25 (Case No. 1:17-cv-00712)
ME2 PRODUCTIONS, INC. v. DOES 1-25 (Case No. 1:17-cv-00706)
ME2 PRODUCTIONS, INC. v. DOES 1-25 (Case No. 1:17-cv-00708)
ME2 PRODUCTIONS, INC. v. DOES 1-42 (Case No. 1:17-cv-00714)
ME2 PRODUCTIONS, INC. v. DOES 1-26 (Case No. 1:17-cv-00710)

Case(s) filed in the Kentucky Western District Court:
ME2 Productions, Inc. v. Does 1-10 (Case No. 3:16-cv-00702)

Case(s) filed in the Maryland District Court:
ME2 Productions, Inc. v. Doe 1 et al (Case No. 8:16-cv-03730)

Case(s) filed in the Missouri Western District Court:
ME2 Productions, Inc. v. Doe 1 et al (Case No. 4:16-cv-01271)

Case(s) filed in the Ohio Northern and Southern District Courts:
ME2 Productions, Inc. v. Does (Case No. 3:16-cv-02715) — Northern
ME2 PRODUCTIONS, INC. v. DOES 1-14 (Case No. 2:16-cv-01062) — Southern

Cases filed in the Pennsylvania Eastern District Court:
(This is Jordan Rushie territory.)

ME2 PRODUCTIONS, INC. v. JOHN DOES 1-8 (Case No. 2:16-cv-06138)
ME2 PRODUCTIONS, INC. v. JOHN DOES 1-13 (Case No. 2:17-cv-00572)

Cases filed in the Virginia Eastern and Western District Courts:
ME2 Productions, Inc. v. Doe 1 (Case No. 3:17-cv-00058)
ME2 Productions, Inc. v. DOE 1 (Case No. 3:17-cv-00057)
ME2 Productions, Inc. v. Does 1-13 (Case No. 5:16-cv-00083)
ME2 Productions, Inc. v. Does 1-11 (Case No. 3:17-cv-00002)


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.

Need to rehash some bittorrent concepts because they are just as relevant today as they were five years ago.

In July, 2010, this blog was started to address the at-the-time unknown problem of copyright trolling.  For years, myself and my staff wrote articles explaining the business model of copyright trolling, which at the time was an adaptation of patent trolling (where “patent trolls” would file [often frivolous] lawsuits against alleged infringers who refused to pay what appeared to be a “shakedown” of the patent holders [e.g., “pay us or else you will end up having to pay even more to defend the claims against you in a federal court”], even when the patent being asserted against the would-be infringer had absolutely nothing to do with the product the targeted company was producing).

There were common threads between patent trolls and copyright trolls, and as the cases developed, there were common themes of how a copyright troll must act to make his model of extorting the public (the bittorrent internet users) profitable.  At the time, that included questions of 1) where and how can a copyright enforcement company or lawyer sue a group of defendants (personal jurisdiction), 2) how to link non-related downloaders into a cohesive set of defendants into a cohesive set of “John Doe Defendants,” (joinder, and my controversial strategy to force a copyright troll to sue the entire bittorrent swarm when a defendant is named and served) and 3) how to avoid risking the potential settlements from hundreds or thousands of accused bittorrent users by moving forward and “naming and serving” one or more defendants.  There were also time limits they faced based on a) how long the ISPs retained the records of which IP address was leased to which account holder / subscriber, b) statute of limitations on how long a copyright holder has to file a lawsuit, and c) how long a copyright troll attorney may keep a case alive before a judge imposes the time limits described in the Federal Rules of Civil Procedure (FRCP Rule 4m, a.k.a. the “120 Day Rule”).

Then, over the years, there arose a confusion under the discussions of “net neutrality” asking questions such as whether an internet service provider (ISP) was governed under the cable act, and if so, under what title.  The reason for this was that there were allegations that various ISPs were outright sharing the contact information of its subscribers without valid court orders to do so, thus violating the privacy rights of its subscribers.

In sum, there were a lot of issues, and we tackled each one over the course of almost five years.  The goal was to educate the bittorrent user and the accused downloader about the issues so that they understand how to act, react, and in many cases, fight against a group of attorneys with questionable ethics.

The problem is that these articles — the ones that have been so helpful to tens of thousands of accused defendants — these articles have been buried by the search engines because they are simply now aging and many articles are now many years old.  An accused defendant can no longer search for a “copyright troll” on Google and find any of my older articles.  [And, enterprising attorneys (and good for them) have put up websites containing SEO-based content full of keywords in hackneyed sentences, but devoid of useful content (e.g., the “contact our law firm, we can help you with your copyright troll lawsuit issue” type of website), while what I consider to be the “useful” content (not only mine, but content written by other attorneys in their blogs, and proactive users [really, trailblazers such as “Sophisticated Jane Doe” of FightCopyrightTrolls and “DieTrollDie”] in their respective blogs) is no longer accessible by typing the name of the particular copyright troll, issue, or case that has been recently filed.

What I will be doing to remedy this as far as this blog is concerned — and I apologize up front to the thousands of you who get updated on each and every article that I or a staff member of mine writes — is that I need to rehash some of the “older” content on the educational topics that I have already covered in the blog ad nauseam.  The reason for this is that the older content explaining the legal concepts in terms of the bittorrent lawsuits (and now in terms of the DMCA letters being sent to subscribers through the ISPs) is just as relevant today as it was five years ago.  There has been little-to-no judicial or legal oversight of the copyright trolls from the attorney generals of each state and from the lawmakers (both federal and in each state), and the problem and issues surrounding “copyright trolling” is just as relevant today as it was almost five years ago.

For these reasons, I need to violate my own preference not to repeat information or content that has already been described or hashed-out in previous articles (my opinion is that one article describing a topic is enough, and writing multiple articles containing the same topic “waters down” or “cheapens” the content of a website).  The reason I now feel the need to rehash some of the older topics is to re-teach those who have not yet been victimized by the copyright trolls, as my older articles are no longer found, even by those looking for that particular topic.

ALSO.  Copyright trolls are now enjoying a seed of legitimacy by the courts, where once upon a time us defense attorneys were “winning” the cases by arguing concepts such as “an IP address does not equal a person,” or “my client had an open wireless router, it could have been anyone who downloaded this video,” the arguments themselves have also aged and are now increasingly being ignored by the courts, even though the arguments remain “an elephant in the room,” meaning, just as valid today as they were yesterday.  On the flip-side, faulty and failed arguments (e.g., “are you negligent if you let someone else use your internet connection to commit copyright infringement” [Answer: NO!]) are being reasserted by the copyright trolls, and to my utter disbelief, they are not immediately being dismissed by the judges as being a faulty argument.

Copyright trolling has not changed in the past five years, and the successful arguments defending a case do not deserve to be ignored just because they have been used successfully by defendants in older lawsuits which too are aging.  Ignoring good case law is contrary to law, as successful arguments in one jurisdiction are binding on all other judges in that federal district, and are persuasive on cases in the federal districts in other cases.  Yet, I see more and more lawlessness in judges who ignore the case law from not only other jurisdictions, but from their own jurisdiction as well (creating a “split” in the court), and they are denying a John Doe defendant’s ability to assert what was a successful argument in another court (even one binding upon them in their own jurisdiction).

In sum, judges are allowing plaintiff copyright holders to sue larger number of defendants each week, even though nothing has changed making this new trend permissible (in my opinion, whether 200 defendants were sued by a plaintiff attorney in one lawsuit or in ten cases [having 20 defendants in each case] filed in the same week still means that 200 defendants were sued; it does not matter that the plaintiff made the cases “appear” to be smaller, especially if they are implicating the same bittorrent swarm in each of the ten cases).

Remember, the underlying copyright troll business model of “shakedown, extort thousands of dollars from each defendant, but avoid moving forward against anyone [but pretend that you are prepared to move to trial]” is still the same as it was five years ago.  It should not matter whether the content of the lawsuit is a Hollywood movie or an adult film.

[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, e.g., sending DMCA copyright infringement notices to the subscriber directly via the ISP, this article is also relevant to RIGHTS ENFORCEMENT.]


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.