2/8 UPDATE: This post was written as a “rant” against volume-based “settlement factory” attorneys because of the damage they cause to other accused defendants (by feeding them false information, causing increased settlement prices, etc.). This afternoon, Ernesto from Torrentfreak wrote an article entitled, “BEWARE: PIRACY DEFENSE LAWYERS CAN BE “TROLLS” TOO.” Because my article (below) was a “stream of thought” article (and because I am still emotional about the problem), as chock full of information this posting might be, his article better describes the issue. -Rob
I started writing this article because there is too much conflicting information floating around the web (likely from attorneys who are trying to use fear tactics to scare you into settling with their firm), and my point was that there are credible websites, such as “Fight Copyright Trolls,” “Die Troll Die,” and a few others who have been helping individuals understand that IGNORING A COPYRIGHT INFRINGEMENT CLAIM AGAINST YOU CAN OFTEN BE A VIABLE OPTION TO RESOLVE THE PROBLEM (WITHOUT SPENDING $$$$ ON A LAWYER), so beware of the attorneys who tell you that you will lose your home, your life savings, or any other fear-of-embarrassment-and-exposure-or-financial-ruin-based argument as to “why you should settle anonymously through them for cheap, or else you might lose everything.”
I circled back to this topic in the end, but this article ended up being a “buyer beware of attorney settlement factories” article, where an attorney or his team of lawyers is trying to lure you into being part of their high-volume settlement business. In this article, 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 where one attorney pushes you to settle and where another (e.g., I) suggest that you just ignore it.
“SETTLEMENT FACTORIES” are what I call these law firms. These law firms hire multiple attorneys to track down, solicit, and lure accused 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. And, rather than actually negotiate a good settlement for their client, they run what I refer to as a “volume business” where they pre-arrange a price with the copyright holder which is above the market (copyright troll profits). Then, instead of actually negotiating a settlement, they’ll hand over the names to the plaintiff attorney and get the high-priced mediocre settlement for their client. In return, the copyright troll allows that so-called attorney to not have to negotiate the settlement for each client, since they have a “fixed settlement amount.” As far as I am concerned, this means that the so-called defense attorneys are part of the copyright troll problem, in a “cottage industry” sort of fashion.
What compounds the problem is that negotiating the settlement is only HALF of the solution. The SETTLEMENT AGREEMENT itself must also be negotiated, particularly because the “boilerplate” settlement agreements contain ADMISSIONS OF GUILT and UNFRIENDLY LANGUAGE which does not properly release the client from liability, nor does it properly protect the client’s rights.
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.
If I see this, all I could say is “caveat emptor,” do your own research on:
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), and
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?”
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.
NOTE: I write this article cringing a bit because I myself just added an e-mail form at the bottom of my articles so that people can contact me if they had a question. I also dislike trashing another attorney or law firm because that simply makes me look bad. I also have a secret, and that is that I was one of the first group of attorneys contacted by EFF to figure out the “John Doe” mass bittorrent lawsuits, and so I have an advantage over the “me too attorney” both legally and information-wise as to the history of these cases, who is who, and which copyright “troll” uses which strategy in fighting a case, and under what conditions will a copyright holder accept a settlement, and how far they will bend in their settlement price. I also spend a lot of time on what I call “situational awareness,” knowing not only the law, and not only the personality of the copyright holder AND the mannerisms of the local copyright attorney hired to sue defendants in a particular set of federal courts, but I also know when a judge is going to dismiss a case (based on his past rulings), and I know when the copyright holder’s local counsel is pressured because of activities that happened in other cases, or whether they are under pressure to resolve a case because they have already have asked for two extensions from the court and I know they will likely not receive a third extension because the judge has expressed an intent for the plaintiff to begin naming and serving defendants. This is the difference between a copycat and an original.
I also say with no shame that 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 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.
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. These are usually the “settlement factories” I referenced above, and again, caveat emptor.
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, or they 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]).
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. 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.”), something that is often done in my field which, in my opinion, needs to stop. This is also why I have upset a handful of non-copyright attorneys who know nothing about these cases who have called me with a client they would like to refer to me (coincidentally, asking to share in the fees, but not in the work).
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.
There is a lot of conflicting information on the web about copyright trolls, and what to do when you receive a subpoena from your ISP, what to do when you receive what is often known as a “DMCA notice” (usually signed at the bottom by Ira M. Siegel) that you have violated a copyright holder’s rights [by what is often the download of a “B-rated” film or more shockingly, that you have been accused or caught downloading pornography through the use of bittorrent (and you thought you were private), and now you want to settle the claims against you anonymously, or you want to make this go away as quickly as possible].
All I could say is STOP AND CONSIDER YOUR OPTIONS, BECAUSE IGNORING A CLAIM OF COPYRIGHT INFRINGEMENT CAN OFTEN BE A GOOD IDEA (and, when I speak to clients, I do ask them questions about the claims against them, and IF THEY CAN IGNORE, I do suggest that they DO NOTHING.) Even in a lawsuit — DOING NOTHING MAY OFTEN BE YOUR BEST STRATEGIC MOVE, as counterintuitive as that might sound.
But 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 when you search for another attorney after doing your own research on who to trust, yes, you know who you are), and those attorneys then 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??
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.]
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) simply because of 1) the individual’s financial situation, 2) the location of their home, 3) the location of the plaintiff attorney, 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 better option in that person’s situation.
But my point, MY POINT, ***MY POINT*** IS CAVEAT EMPTOR. 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) if in a lawsuit, defending the claims against you, beware, beware, beware.
The EFF list of attorneys who handle “mass bittorrent John Doe lawsuits for copyright infringement violations” has grown to over 100+ attorneys, and I have never even heard of some of these attorneys (which means that they are not defending cases, but rather, are running a volume-based settlement factory). I also see a number of names where I know for a fact that some of the attorneys listed in various states are NOT LICENSED to practice law in that state (neither on the state level, nor on the federal level) — this is a clear sign of being a volume-based settlement factory. I also know from my own experience defending clients that some of the attorney names on this list have switched sides and are now suing defendants.
…Just do your research, ok? And when a lawyer calls you, and then calls you again (and again), please ask yourself why they are following up with you.