Category Archives: Torrent

When is it too late to hire a lawyer in a John Doe lawsuit?

The best time to hire an attorney in a “John Doe” copyright infringement lawsuit is when you receive a subpoena notice from your ISP.

Even if you are not planning on filing a motion to quash, this is a copyright infringement case, and you need time to prepare for what will happen should you be named and served.

Hiring an attorney while you are still a “John Doe” gives you plenty of thinking time to get your affairs in order (for example, managing your online reputation by adjusting privacy settings on your social networking sites), and it gives you time to get your financial affairs in order.

DO NOT WAIT TO HIRE AN ATTORNEY UNTIL AFTER THE ISP HANDS OVER YOUR INFORMATION TO YOUR PLAINTIFF ATTORNEY.

There are a lot of things that you can accomplish before your ISP hands out your information.  You are anonymous at this point, and you can take advantage of that anonymity.

If you want to negotiate a truly anonymous settlement, when you receive your subpoena notice from your ISP is the time to do it.  The plaintiff attorney has done almost no research on your John Doe entity, and thus the settlement amounts will be low because there are no legal fees the attorney will want to add to the settlement amount to be paid for time spent trying to proceed against you.

Also, if your attorney is successful in negotiating an anonymous settlement (this may or may not be a good idea; talk to me and I’ll explain why), the benefit of doing it now when nobody knows who you are is that your plaintiff attorney will cancel the subpoena as to your John Doe entity once the settlement is complete.  That way, even he won’t ever know who you are (and thus you won’t have to worry about follow-up lawsuits, or the ‘copyright troll’ attorney asking you for more money later on, etc.).

ABSOLUTELY DO NOT WAIT UNTIL YOU ARE NAMED AND SERVED AS A DEFENDANT IN THE LAWSUIT.

Once you are named as a defendant in the lawsuit, your “John Doe” status is over, as is your anonymity.  Not only will the court know who you are, but at this point, the INTERNET will know who you are.  Forever, spiders and crawlers who search and index the legal sites and the lawsuit sites will index your name as being implicated as a defendant in that particular lawsuit.

Even if you settle the case, your reputation will be forever tarnished.

Even if you fight the case AND WIN, your reputation will forever be tarnished.

Once you are named and served, you have a ticking time bomb deadline waiting around the corner, where you will be forced to file an “Answer” with the court, or else you will be in DEFAULT.

Trying to negotiate a settlement after being named and served is like trying to negotiate with a gun to your head.  It is doable (and we have done it many times), but there is NO LEVERAGE.  The plaintiff attorney at this point is emboldened because there is nothing that he needs to do except wait.  He is under no pressure to negotiate at this point, because the law gives his client statutory damages if the infringement is willful.  Even if his client does not get the $150,000 statutory damages jackpot, if the named defendant defaults and the court awards minimum damages ($750), because the plaintiff attorney is the prevailing party, he will be awarded his attorney fees (which in most cases will be over $2,000 — higher than the commission he would have received had he accepted a settlement from you).

THUS, THERE IS A FINANCIAL INCENTIVE FOR THE PLAINTIFF ATTORNEY *NOT* TO SETTLE AFTER NAMING AND SERVING A DEFENDANT

Lastly, if you hire an attorney after you are named and served, practically, the attorney will be under pressure to get everything in order and filed before the deadline.  Please do not do this to your attorney.

We do not do this, but most attorneys will charge a premium or a higher hourly rate if there is a “days to a default” deadline associated with the work to be done.  The reason for this is that the attorney will need to drop whatever he is already working on and throw your case to the front of the pile (usually at the cost of accepting other business).

If you hired an inexperienced attorney after being named and served, the work you will get in return for the money you paid will be lower quality, because the attorney will not have the time to research the best legal strategies, arguments, or defenses available to your case, and in copyright infringement lawsuits, your defenses need to be raised in your answer or else you waive them.

For these reasons, for your own sanity, for your lawyer’s sanity, and for your own benefit — please DO NOT wait until you are named and served before hiring an attorney.  Do it immediately when you learn about the lawsuit from your ISP.


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 Malibu Media, LLC lawsuit, click here.  Lastly, please feel free to e-mail me at info@cashmanlawfirm.com, 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.

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.

A Thank You! to bloggers who have made our site possible.

This week we moved past 1 MILLION views of this website, and yet, I missed it.  As we head into the weekend, I realize that a lot has happened this week, and I wanted to take a moment to give credit where credit is due.

Were it not for an active community of attorneys, bloggers, and activist associations such as the Electronic Frontier Foundation (EFF.org), most of us would still be in the dark, unaware as thousands of families have their life savings taken.

I want to especially thank “Sophisticated Jane Doe” of Fight Copyright Trolls (https://www.fightcopyrighttrolls.com), who has been an endless supply of information, support, and behind-the-scenes research into everything that is going on with the copyright trolls.

I also want to thank DTD from the Die Troll Die website (https://www.dietrolldie.com), because without his efforts, his entertaining blog posts, and the time he has taken to read so many cases and rulings, much would have been lost.  I also want to comment that when these cases began in 2010 and there were thousands of “John Doe” Defendants filed in one bittorrent-based copyright infringement case, it was DTD who filed endless “anonymous John Doe” motions with the court that not only educated judges, but broke a number of cases simply by telling the truth of what those copyright troll attorneys were doing when the judges were not looking.

I also want to thank the attorneys with whom I speak to regularly, and with whom I correspond with and e-mail both over Twitter, over WhatsApp, and over various Listservs.  You know who you are.  You are an amazing resource, and without you, there are countless examples of where I would have been stumped without your assistance.

And to the growing list of attorneys who practice in this area of law who contact me asking how to do something, or ask me to explain who is who, I appreciate being of service.  It is a pleasure working with each of you, teaching you what I know, and sharing news about various copyright holders, ‘copyright trolls’, and strategies which have worked and flopped for each.

Lastly and possibly most importantly, there are many of you on Twitter that I would like to thank, and you know who you are.  Our area of law creates an ‘echo chamber’ on Twitter.  In that echo chamber, I read every post you write, I appreciate your feedback, I appreciate your insight, and without you, I would have missed out on a number of lawsuits and topics which happened in one set of courts while I was representing clients in another set of courts.

So thank you, from the bottom of my heart.  I appreciate everything you do.

-Rob


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 either e-mail me at info@cashmanlawfirm.com, or 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.

SHOULD I IGNORE A “RIGHTSENFORCEMENT.COM” DMCA NOTICE?

In short, the answer is clearly NO (and I have a good reason for this answer which is not meant to scare you).

[This article is a continuation of the “WHAT DO I KNOW ABOUT RIGHTS ENFORCEMENT” article.  It made sense to separate out the topics and keep them short and to the point.]

With CEG-TEK, when someone asked “what are my chances of being sued if I ignore,” I would have told you “LOW,” because CEG-TEK typically did not file lawsuits if a recipient of one of their “DMCA scare letters” was ignored.  RIGHTS ENFORCEMENT IS DIFFERENT.

Because Carl Crowell (the puppet master behind the RIGHTS ENFORCEMENT site) is an active ‘copyright troll’ himself, AND BECAUSE HE HAS A TEAM OF ‘COPYRIGHT TROLLS’ ACROSS THE U.S. WHO ARE ACTIVELY SUING DEFENDANTS, I would likely suggest that the chances of being sued are “VERY HIGH.”  Again, this is not to scare you, but it is based on simple logic.


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.

WHAT IF MY RIGHTS ENFORCEMENT DMCA NOTICE DUE DATE EXPIRED?

*IT IS NOT TOO LATE.*  If the DMCA notice that you received and/or ignored or threw in the trash has expired, the copyright holders have THREE YEARS from the alleged date of infringement to file a lawsuit against you in a federal court.  So there is time to solve the problem, if it has not already escalated into a lawsuit.

[This article is a continuation of the “WHAT DO I KNOW ABOUT RIGHTS ENFORCEMENT” article.  It made sense to separate out the topics and keep them short and to the point.]

If the DMCA notice had a deadline which has expired, since RIGHTS ENFORCEMENT is a knock-off of the CEG-TEK system, my best guess is that following the expiration of whatever date you were given in your notice (likely 30 days), a second letter will be forwarded over to you stating that “because you did not settle, now we want $3,500 for that one title,” or whatever they are asking for.  This too can be negotiated by an attorney.

NOTE: Why $3,500?  Marvin Cable used to ask for $1,850, if I remember correctly, and that was back in 2012.  Also, CEG-TEK’s business model was not to sue anyone, so their settlement letters lacked ‘teeth’.  However, RIGHTS ENFORCEMENT settlement letters are made with an explicit threat that they will follow-up with a lawsuit against the internet subscriber of your account if you do not settle.  For this reason — because their threats have ‘teeth’ — you can expect to see higher follow-up settlement amounts, akin to a settlement if a lawsuit were filed.


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.

WHAT IS THE RELATIONSHIP BETWEEN RIGHTS ENFORCEMENT AND YOUR ISP?

As I described last year, there are THREE POSSIBLE RELATIONSHIPS between a copyright enforcement company (Carl Crowell’s RIGHTS ENFORCEMENT entity is one such company) and your Internet Provider (“ISP”).

[This article is a continuation of the “WHAT DO I KNOW ABOUT RIGHTS ENFORCEMENT” article.  It made sense to separate out the topics and keep them short and to the point.]

WHY IS THE RELATIONSHIP BETWEEN YOUR ISP AND RIGHTS ENFORCEMENT RELEVANT TO YOU?

RIGHTS ENFORCEMENT uses the Digital Millennium Copyright Act (“DMCA”) to send DMCA abuse / copyright infringement violation letters directly to subscribers.  This method of contacting a subscriber accused of ‘piracy’ directly avoids the need to file a lawsuit and pay a $400 filing fee to uncover the identity of the accused downloader.  Instead, the copyright holder can simply send a notice saying “you were downloading our movie, cut it out or we can sue you” as a mechanism to stop the alleged piracy with minimal fees charged to both the copyright holder policing his copyright, and to the ISP (who gets to avoid complying with costly subpoenas forced upon them by judges in federal copyright infringement lawsuits).

The DMCA is supposed to be the best solution, but copyright enforcement companies have found ways to misuse these DMCA notices.  Instead of telling the user to “cut it out,” they claim that unless they settle the claims against them and pay the copyright holder money via their website, the copyright holder will file a lawsuit against them for $150,000 under the copyright infringement statutes.

If you received a DMCA notice from RIGHTS ENFORCEMENT, chances are they are asking you for multiple thousands of dollars for infringement of their titles, priced at $300 per instance of infringement.

WHAT ARE THE THREE RELATIONSHIP TYPES BETWEEN A COPYRIGHT ENFORCEMENT COMPANY AND THE ISP?

There are three types of relationships between a company such as RIGHTS ENFORCEMENT and your ISP.  I am only listing them in summary form because I have already written about this topic in depth here.  The reason I am rehashing this topic is because RIGHTS ENFORCEMENT is an “evil twin” of what CEG-TEK is, and thus knowing the character of the attorneys involved, I come to different conclusions here than I did last year when reviewing this same topic when it came to CEG-TEK.

Here are the three types of relationships:

1) A RELATIONSHIP OF FORCE AND THREATS AGAINST THE ISP (where RIGHTS ENFORCEMENT threatens, and the ISP complies),

2) A RELATIONSHIP OF PROFIT FOR BOTH SIDES (where RIGHTS ENFORCEMENT pays, and the ISP cooperates), and

3) A RELATIONSHIP OF PURE MOTIVE (both RIGHTS ENFORCEMENT and the ISP hold hands and cooperate, to “fight piracy”) — UNLIKELY.

Most likely, the relationship between Carl Crowell and the ISPs are 1) a relationship of force, threats, and control.

WHY DO I BELIEVE THE RELATIONSHIPS BETWEEN RIGHTS ENFORCEMENT AND THE ISPs ARE BASED ON FORCE AND THREATS?

There are a number of ISPs on Crowell’s list of ISPs who are explicitly NOT FRIENDLY to companies such as RIGHTS ENFORCEMENT (e.g., COX, Frontier, Hawaiian Telecom, and Windstream).

These ISPs are known for protecting the privacy of their subscribers, and I understand that they were staunchly against CEG-TEK’s attempts to get them ‘on board’ with the 3) RELATIONSHIP OF MOTIVE (“holding hands and cooperating to fight piracy”), and I understand that they were likely not willing to even join them in a 2) RELATIONSHIP OF PROFIT FOR BOTH SITES.  They were simply against any participation in the DMCA settlement notice scheme.

However, seeing that these ISPs are working with RIGHTS ENFORCEMENT, I must assume that they have apparently caved in to what I believe are threats of lawsuits by Carl Crowell that if they do not comply and forward the DMCA settlement demand letters to their subscribers accused of downloading Crowell’s titles via bittorrent, he will sue these ISPs and claim they are in violation of the DMCA Safe Harbor rules.  COX is already in a similar lawsuit, and it is possible that they may lose based on the current state of the DMCA statues.

SHOULD I CANCEL MY ISP ACCOUNT AFTER RECEIVING A NOTICE FROM RIGHTS ENFORCEMENT?

NO.  In the RIGHTS ENFORCEMENT case, it appears to me as if your ISP is being forced to comply with Crowell’s demands.  They are possibly just as angry about these DMCA notices as you are.

Many of you will be shocked and upset when you learn that your ISP forwarded the DMCA settlement notice to you, and you will likely call me asking whether you should cancel your ISP.

As a general rule, no, there is no benefit to cancelling your ISP.  Emotionally, even if they were not forced to send the DMCA settlement notices to you, they do believe that piracy is bad, and even if they do not believe this, piracy does put a terrible strain on their servers.  So they have a financial benefit to cooperating with the copyright holders to stop piracy.

For more details, I invite you to read the article I wrote last year when it was CEG-TEK sending the DMCA notices, not RIGHTS ENFORCEMENT.  There, I hashed out the various relationships in a way that you could understand that the ISPs are almost never a partner encouraging this sort of copyright enforcement.

For that reason, it is almost never needed to cancel your ISP because you learned that they forwarded a DMCA notice from a copyright holder.


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.