Tag Archives: settlement factory

Exposing Fear-Based Copyright Settlement Factories.

FEAR should never be a consideration when considering a copyright attorney to defend you against a Strike 3 Holdings, LLC (or, Malibu Media, LLC or any other copyright troll) lawsuit.

I have written many articles describing the activities of copyright trolls AND so-called defense attorneys who claim that they represent defendants. I and others have called those attorneys that file hundreds of mass copyright infringement lawsuits “copyright trolls,” and I call attorneys who pretend to represent defendants (but who really run volume-based settlement businesses) “settlement factories.”

CREDIBILITY

For credibility, I and my staff at the Cashman Law Firm, PLLC manage our docket of clients very carefully. As you may have experienced yourself, in the eight years we have been representing copyright infringement John Does accused of copyright infringement, there have been many times where we simply do not take new clients. Each client takes a limited number of resources, and we do not run a volume-based business. [See here for more details.]

Thus, I have nothing wrong with answering your questions and directing you to an attorney who is competent to take your case. We have never taken a referral fee from an attorney, nor do we ever plan to. I hope you can appreciate this, even if after speaking to me I was not going to be your attorney.

Have you read enough? Book Now to get help. > > >

EFF.org’s Subpoena Defense List:

Only Kudos for EFF:

I have only good things to say about EFF, and I support them 100% on so many of their efforts. I am about to criticize their Subpoena Defense List, but this does not reflect the respect, admiration and support I have always had for them.

The Good:

One resource that copyright infringement defendants often find is the EFF Subpoena Defense list. On this EFF.org list, there are possibly now hundreds of attorneys who can represent you in your John Doe-based copyright infringement lawsuit — many of them good attorneys who I have known for many years.

NOTE #1: It is interesting exercise to see who-is-who (which attorneys have been around for a while, and which are the newer attorneys who act as “copycats,” often merely settling cases), and you can do so by clicking on Archive.org’s “Way Back Machine” here:

NOTE #2: Just because an attorney is new does not mean that he or she is unable to take your case. I am merely demonstrating how much this list has grown since 2010.

The Bad:

EFF does not appear to filter this list, or at least they do not filter out attorneys who harm potential clients with misinformation.

If an attorney states that they will represent clients in a certain state, they will list them without vetting or verification.

Case in point — some attorneys list themselves as taking clients in multiple states.  Any attorney can represent a defendant in any federal court in any state, as long as that federal court allows an out-of-state attorney to “pro hac” into that federal court (most do).  It is deceptive for an attorney to indicate they are licensed in a particular state in which they are not licensed to practice law.

The EFF Subpoena Defense list size has also grown exponentially.  In 2010, this list contained a list attorneys who agreed to proactively defend clients in these cases (of those listed, 20 of us were active in this space); back then, the purpose of the EFF list was to hash out the law of copyright infringement as it applied to bittorrent-based copyright infringement lawsuits.

Now, the list contains HUNDREDS of attorneys who are trying to capitalize on the hundreds of defendants who are sued in the federal courts each month, without regard as to who is a credible attorney and who is a settlement factory.

The Ugly:

The EFF Subpoena Defense List has become populated with attorneys 1) who are not familiar with the case law we have developed over the years, 2) who do not care whether a defendant SHOULD pay a settlement or not, and 3) who often MISREPRESENT the law to potential clients who call them desperate for help.

These settlement factory attorneys threaten accused defendants… even with JAIL time for a CIVIL lawsuit, when any attorney should know that copyright infringement lawsuits are CIVIL lawsuits — at their worst, they ask a defendant to pay money damages or they stop a defendant from committing a certain act — they do not accuse a defendant of committing a crime.

Unfortunately, over the years, I have found that there are a number of “settlement factories” on this list, one more was exposed to me this morning.

I do not plan on making this article yet one more article identifying copyright settlement factories and their tactics, nor do I expose the names of other attorneys who have some brilliant and smart sales tactics to lure you in.  As you see — I do not post on this website often, nor do I maintain a hype-based, fear-based website on who is suing who in what state.

Have you read enough? Book Now to get help. > > >

Here is my point.

When you speak to a defense attorney about your copyright infringement lawsuit, 1) that attorney should inform you of the nature of the lawsuit, 2) they should inform you of the claims against you, and 3) they should provide you all of your options on how to defend yourself (even those options which do not profit that attorney).

If that attorney cannot assist you, he or she should not take you as a client (only to surprise you later telling you that you must settle, or else).  Rather, he should refer you to an attorney who can assist you.

And never — NEVER — should that attorney misstate the law or threaten a client with fear-based tactics or veiled threats that a certain plaintiff attorney will do something that they would not ordinarily do.

I’ll stop here. In short, look up the attorney you are considering to retain as your attorney to represent you in your lawsuit.

Helpful Hints:

Do not be fooled with crafty sales tactics or web site blog articles written as soon as a lawsuit is filed.

Ask yourself when viewing an attorney’s website — is he trying to ensnare me to become his client? Did he have to pay per click for me to click on his website (we too have done AdWords campaigns over the years, but only rarely).

Usually, a settlement factory will always have an extensive Google AdWords campaign going, or they will position their website [either by explicit payment, by posting keyword-based useless content, or by posting alternative media, e.g., animations and videos to separate their multimedia ads from the other attorneys who are writing helpful content on the website] so that they show up at the top of every search engine ranking for every keyword).

A note on law firms without blogs:

Lastly, just because an attorney does not have an extensive blog [like we do] does not mean that they are incompetent about your case. There are a number of credible attorneys who I trust, and they do not have blogs.

If I cannot assist you or represent you myself, I will happily refer you to an attorney, even if he or she only has a one-page website.  This attorney might be better than all of those copyright settlement factories who post with tags and keywords every time a lawsuit is filed in a particular state.

Have you read enough? Book Now to get help. > > >

Your consultation with an attorney should be a pleasant experience.

I guess it is important to mention that the conversation with your defense attorney should be a pleasant conversation.

You should feel better about yourself and your case when you hang up the phone, and when you do, you should feel as if you were educated about your case and your options.

If an attorney has scared you, or has threatened you by what the plaintiff attorney will do or could do, or if the attorney has told you that your only option is to settle the claims against you (especially if you did not do the download), he is likely not the attorney for you.

Even the worst case scenario in these cases is a civil judgement against you, which are money damages. Nobody will ever take away your freedom, and nobody will ever put you in jail for downloading materials which are the subject of these copyright infringement “John Doe” subpoena-based lawsuits.


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.

 

REVISITED: Beware of the defense attorney “copyright trolls” too.

This post was originally written as a “rant” against volume-based “settlement factory” attorneys.  At the time, the kind of damage they caused to accused defendants in bittorrent cases was unknown, as was their existence.  Even today, settlement factory defense attorneys continue to feed inquiring ‘John Doe’ subpoena recipients false information.  And as a result, settlement prices paid to copyright trolls often end up being artificially inflated.  As of 4/17/2017, I have revisited the topic, and it is still as valid today as it was one year ago.

After writing this article, Ernesto from Torrentfreak wrote an article entitled, “BEWARE: PIRACY DEFENSE LAWYERS CAN BE “TROLLS” TOO.“. -Rob Cashman

Beware of Attorney Settlement Factories

I started writing this article because there is too much conflicting information floating around the web about whether to settle a bittorrent-based copyright infringement lawsuit.  The attorneys who are causing this confusion are trying to profit from the current broken state of the copyright laws.  These attorneys use fear tactics and manipulation to scare a John Doe Defendant into settling with their law firm.

Credible Websites Teach That Settlement is NOT a Requirement

There are credible websites that blog almost daily on copyright troll issues.

see “Fight Copyright Trolls,”

see “Die Troll Die.”

Copyright Trolls Do Not Take Cases To Trial

Because copyright infringement lawsuits are often based on scare tactics, and because copyright troll attorneys name only a small sliver of defendants sued, ignoring a copyright troll and his threats can be a good strategy.

IGNORING A COPYRIGHT INFRINGEMENT CLAIM AGAINST YOU CAN OFTEN BE A VIABLE OPTION TO RESOLVE THE PROBLEM (WITHOUT SPENDING $$$$ ON A LAWYER). 

Thus, beware of the so-called “defense” attorneys who tell you that you will lose your home and your life savings if you do not settle.

What are “SETTLEMENT FACTORY” defense attorneys?

NOTE: In this section, I give you the red flags to look for to spot these attorneys, and I hope this helps clarify some of the conflicting information you get from speaking to different attorneys.

“SETTLEMENT FACTORIES” are what I call law firms who focus on providing apparent “low cost settlements” to clients (as you will see, the settlements end up not being low cost).

These settlement factory law firms hire multiple attorneys to solicit and lure accused ‘John Doe’ defendants into hiring them “for a cheap and anonymous settlement.”

From a business perspective, more attorneys for the business owner means the ability to make more phone calls to solicit more accused defendants [to process more settlements], and the ability to “capture” more clients for their law firm means more profits.

SETTLEMENT FACTORY law firms PRE-ARRANGE settlement amounts.

Rather than actually negotiate a good settlement for their client, settlement factories run what I refer to as a “volume business.” They PRE-ARRANGE an often inflated settlement price with the copyright holder, so the copyright troll will agree to the arrangement.

In return, the copyright troll allows that so-called attorney to not have to negotiate the settlement for each client, since they have a prearranged agreed-upon “settlement amount.”

Why settlement factory attorneys are PART OF THE PROBLEM of copyright trolling.

This arrangement creates a “cottage industry,” where the defense attorney and the plaintiff attorney (who are supposed to be opponents) are allies for profit.  Settlement factory attorneys are part of the problem of copyright trolling; they are not part of the solution, and the only one that gets hurt is the accused defendant.  Why?  Because with settlement factories, the accused defendant almost NEVER gets the lowest possible settlement amount.

SETTLEMENT FACTORY law firms DO NOT NEGOTIATE SETTLEMENT AGREEMENTS either.

What compounds the problem is that negotiating the settlement is only HALF of the solution. The SETTLEMENT AGREEMENT itself must also be negotiated. However, settlement factory attorneys do not negotiate settlements either (even though they tell you they do).

Why settlement agreements need to be negotiated.

Settlement agreements need to be negotiated because “boilerplate” settlement agreements contain ADMISSIONS OF GUILT and UNFRIENDLY LANGUAGE.

These boilerplate settlement agreements do not protect the client because they often:

  1. do not properly identify the accused defendant by name,
  2. they do not contain proper confidentiality clauses (to stop the plaintiff attorney from suing again or asking for more money later on), and
  3. they do not release the accused defendant from liability.

Settlement factory defense attorneys.

As a result of this article, settlement factory attorneys will take steps to hide their scheme.

For me, where writing this article will become infuriating is that suddenly these attorneys and their “beefed up” staff of hired attorneys will now start advertising 1) that they spend the time to actively negotiate the best settlement for their client, and 2) that they take the careful time to negotiate the terms of the settlement agreement so that the accused John Doe Defendant will be released from liability and the negotiated terms will properly protect the client’s rights.  Sure they will.

‘RED FLAGS’ TO SPOT A SETTLEMENT FACTORY

I know settlement factory attorneys follow this blog, and thus all I could say is “caveat emptor.”

At the time of writing this blog, here are the items to look for:

1) How long that attorney has been in practice [REMEMBER: “Copyright Troll” mass bittorrent lawsuits targeting multiple “John Doe” defendants have only been in existence only since 2010, so any attorney who claims he has been fighting copyright trolls for 20 years is obviously lying.],

2) Check the attorney’s blog to see the HISTORY of his articles — was he one of the first attorneys who fought these cases, or is he a new “me too” copycat attorney who is standing on the shoulders of giants? (after reading this, no doubt these attorney will now add “older” articles to make their website look older),

3) Check the blog article itself for “SEO OPTIMIZED” content, or “KEYWORDS” placed into the article.  Ask yourself, “was the purpose of this article to provide me valuable information? or was the purpose of the article to bulk it up with keywords so that search engine spiders will reward the author with first page rankings on the search engines?

2017 UPDATE: When I mentioned SEO OPTIMIZED content, I am referring to the fact that settlement factory blog articles lack content.  In our blog, we have over 200+ information-packed articles that we wrote TO EDUCATE.  Obviously many clients came to our firm as a result of our articles, and this is fine.  However, settlement factories have ONE MOTIVE ONLY: TO PROFIT.  Look for sites that advertise to you rather than inform you and educate you.

4) Last, but not least, check the EARLY ARTICLES of the blog to see whether the attorney actually tried to fight these cases and hash out the legal arguments, or whether they were merely reporting on the lawsuits already in existence to attract new business.  I call these attorneys “me too” attorneys, and you can usually spot them because all they do is report the cases.

AUTHENTICITY AND ORIGINALITY

In 2010, I and a small handful of attorneys were contacted by the Electronic Frontier Foundation (better known as EFF) to help understand and resolve the developing copyright troll problem.  This was back when ISPs began sending letters out to their subscribers informing them that their ISP would be handing out their contact information and their identity to the plaintiff attorney / copyright holders unless they filed objections (or, “motions to quash”) with the courts. Thus, I credit the EFF for even noticing the copyright troll problem and contacting us to figure out what to do about it.

COPYCATS / FOR PROFIT ATTORNEYS

Unfortunately (or, fortunately, however you see it), that initial list of 20 attorneys has grown to over 100+ names, and some attorneys have negotiated with EFF to list them as representing clients in multiple states, hence increasing their visibility in an ever-growing list of lawyers. Watch for these attorneys — they are usually the “settlement factories” I referenced above, and again, caveat emptor.

REPUTABLE ATTORNEYS DO EXIST

Let’s pretend, for a moment, that you did not like me or my use of pretrial strategies (often making use of federal procedure) to defend a client. Or, let’s pretend for a moment that I could not take you as a client (e.g., because my case load was full, or because I did not have time to speak to you about your matter).

Because there were only a handful of us attorneys on the original EFF list who knew anything about these copyright infringement lawsuits, over the years, we have become friends and have helped each other out on many of the lawsuits in which we represented both John Doe Defendants and “named and served” defendants. Some of these attorneys are still around today, and some have moved on to other areas of law.  Some of them have stopped taking clients because fighting mass bittorrent cases has become more burdensome than the effort was worth (especially when some copyright holders do not play fairly in discovery [think, Malibu Media, LLC]).

PIPEDREAMS AND REFERRALS

Finding “that special client who will pay my fees to fight this case to trial” for many attorneys has become an unrealized pipe dream, and is something us attorneys often discuss.  If you truly want to fight your case, I have nothing wrong with either me, or anyone else I trust representing you in your lawsuit (I will happily tout another attorney’s merits and advanced skillsets when speaking to clients). AND, I will happily refer you to someone if I find that one of my peers would better assist you.

NO REFERRAL FEES

I *DO NOT* believe in referral fees, nor do I “share the workload” with other attorneys (this is code word for “I referred you this client, so pay me a piece of the legal fees you receive and call it paying me for my “proportional efforts.”). This is something that is often done in my field which, in my opinion, needs to stop.

Over the years, I have upset many non-copyright attorneys who know nothing about these cases.  In the typical fashion, they call me with a client they would like to refer to me (coincidentally, asking to share in the fees, but not in the work).  I have rejected each request.

So in hindsight, while I thought I’d be reintroducing “copyright troll” subpoenas and basic copyright infringement concepts to clear up some conflicting information found on the web, instead I am providing a clear warning to those who are being actively solicited by law firms. A law firm simply should not be calling you or contacting you to solicit your business.

BACK TO IGNORING A CLAIM OF COPYRIGHT INFRINGEMENT

Copyright trolls sue many John Doe Defendants in one case, but only a small number of them are named and served.  When you are evaluating your options, STOP AND CONSIDER THE OPTION OF *NOT SETTLING*, BECAUSE *NOT SETTLING* A CLAIM OF COPYRIGHT INFRINGEMENT CAN OFTEN BE A GOOD IDEA.

Similarly, in a lawsuit, DOING NOTHING MAY OFTEN BE YOUR BEST STRATEGIC MOVE, as counterintuitive as that might sound.  Again, this is because much of the ‘copyright trolling’ problem is based on a bluff — namely, that the copyright holders have evidence against you, and they will take you to trial if you do not pay them money to settle.

A Settlement Factory attorney makes NO MONEY if you ignore.

When you are bombarded with attorneys and law firms who actively market their fear-based services by using “Google AdWords” (ethically or unethically “buying” more well known attorney’s names as keywords so that THEY show up at the top of a search). Then, those attorneys have their “assistant” attorneys calling you and pushing you to anonymously settle the claims against you, think twice. Is this person trying to get you to be yet one more client in their “volume” business??

WHY WE DISCUSS THE “IGNORE” OPTION WITH EVERY POTENTIAL CLIENT

In every one of my calls, I discuss what I call the “ignore” option which in many people’s scenario is a viable option. In many cases, I even push a client towards the “ignore” side of things.

[NOTE: There are many political reasons I have for this, such as “not feeding the troll,” or “not funding their extortion-based scheme,” or simply because I have been trying to change the copyright laws to limit or hinder a copyright holder’s ability to accuse or sue an internet user for the violation of that copyright holder’s copyrights, but NONE OF THOSE REASONS ARE REASON WHY I SUGGEST SOMEONE I SPEAK TO IGNORES THE CLAIMS AGAINST THEM.]

WHEN TO CONSIDER THE “IGNORE” OPTION.

Sometimes an individual’s circumstances allow them to ignore the lawsuit filed against them (or the copyright violation claimed against them in the DMCA notice).  Such factors include:

1) the individual’s financial situation,

2) whether they live in an apartment or a home,

3) the location of that apartment or home,

3) the state in which the plaintiff attorney has his law firm,

4) whether that copyright holder authorizes his attorneys [and pays their fee] to “name and serve” defendants and move forward with trial,

5) for strategy purposes, e.g., the psychological impact of having one or more John Doe Defendants ignore the claims against them (while other defendants rush to settle in fear of being named and served), or

6) simply because ignoring is the only option in that person’s situation.

IN SUMMARY

In summary, this has been a stream of thought article, but if you have made it to this point, you now understand the difference between a defense attorney who does settlements (among other forms of representation), and the settlement factory.

If the attorney you are speaking to is running your case as a volume business, or he is pushing you towards a “quick anonymous settlement” without showing you the merits of either 1) IGNORING, or 2) DEFENDING the claims against you, beware.

And if you need help and want my honest opinion about your case, or whether a particular attorney is engaging in a certain practice, just ask me.  I do not need to have all of you as clients, and I will answer you honestly.  And if you need, I will provide you a referral.


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.


Genbook Reviews | Cashman Law Firm, PLLC