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Archive for September, 2010

Just as soon as I hit the “submit” button on the last post, I received an e-mail from a potential client that Lucas Entertainment, Inc. has begun contacting people about settlement negotiations for their accusation that the internet subscriber has violated copyright laws by downloading copyright protected media.  To avoid cutting-and-pasting this e-mail reply to each of my clients and/or potential clients, I am posting it here for your review.

Dear XXX,

It is good to hear back from you, although I wish it were under better circumstances.  If you read my blog entry entitled, “Torrent Downloaders Accused of Downloading Illegal Movie Files Now Wonder, ‘What Happens Now That the Subpoena Date Has Passed?’”, you’ll get an idea of what has been going on these past few weeks, and why you have been contacted so quickly with an offer to settle.

My goal in our initial correspondences was to protect you against it ever coming to where you are now.  Feel secure, however, in that you are a student with no income, and even if they persisted, for the time being you are what people in the industry call “judgment proof.”  You have nothing they can take from you (except perhaps your freedom and tarnishing your criminal record if they can prove that you violated a criminal statute, but at this stage, I understand that they are likely only looking for money).

Without meaning to scare you, the prospect of them going after you legally is an expensive proposition for them.  They will need to pay the court fee to file suit; they will have to have your served in a court in which they have jurisdiction over you; and they will need to prove their case.  I can certainly defend you in such a case, but it will be for far more than the $1,500 steep discount I have been offering people to defend them up through the negotiation phase.

You have a few choices here.  First, you can continue representing yourself without an attorney as you have been doing so far.  You can negotiate a lower settlement rate (by the way, ask yourself what exactly you are settling if they have not yet named you in their lawsuit nor have they filed suit against you in your jurisdiction), or you can pay their demand.  If you do, make sure you receive a release that they will not pursue you any further in any capacity (civil, criminal) for this movie or for any other movie you download.

Second, you can play the “Take a hike, I’m judgment proof” card and hope they don’t decide to come after your civilly or criminally.

Last, but not least, you can hire me to represent you in this negotiation.  You can decide whether you would want me to negotiate on your behalf for an amicable settlement or to come at them with guns blazing, so to speak.  I would immediately send them a letter indicating that you are now represented by an attorney and that they should cease all attempts to contact you regarding this matter.  Instead, all communications would come through me.  Depending on how you would like me to proceed (amicable settlement or guns blazing), if you decide to settle, I would participate in the negotiations to get the best terms for you and I would review the settlement terms to make sure you are shielded against future actions for this same download activity.  The last thing you want is a criminal lawsuit after you have just spent a few thousand dollars settling with them.  If you wanted me to go the guns blazing defense route, I would make them prove their case and would find every defense applicable to you to make it as difficult as possible to validate their claim against you.

Either way, if you and I spoke, I would tell you that my fee is $1,500 as it is for everyone else who comes my way.  I am able to offer this steep discount off of my regular rate and offer flat rate billing because there have been so many of you who have contacted me about the same issue and thus the work I do for one client is the same for everyone else.

If you decide to take me on as your attorney, I would need you to e-mail me your full name, address, and phone number.  I will write up a fee agreement and will e-mail it to you.  I’d like to have you sign the fee agreement and get it back to me ASAP with a cashier’s check, bank check, or money order (perhaps you can send it by FedEx if you’d like), as you do not have much time left given your 9/18 deadline.  Normally a regular check is fine, but I cannot take you on as a client only to have your check bounce a week or so later given the time restraints; nothing personal, of course.

Keep in mind that until you have done this, I am not your attorney and as such, nothing I have said above is to be taken as legal advice.  If you decide not to go with me, I advise you to seek independent counsel on anything I have said above; moving forward on your own should be done with caution and at your own risk.  I cannot protect you if I am not your attorney.

I’m sure this e-mail is exactly what you wanted to hear at 11:50pm at the beginning of your school semester.  I would suggest getting your parents involved if you are unable to afford my fee or the settlement agreement.

Warm regards,
Robert Z. Cashman

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One of the interesting niche areas of law that the Cashman Law Firm practices is Cyberlaw, where we protect internet users against companies who accuse them of copyright infringement based on illegally downloaded movies, music, and software.

A few weeks ago, a number of lawsuits have been filed where the plaintiffs (e.g., Lucas Entertainment, Inc.) have filed subpoena requests against a few hundred or in some cases a few thousand potential defendants, amicably called “John Doe #XXX.” Their intent was to have the internet service provider (ISP) turn over their subscribers’ information so that they can contact them directly to elicit a multi-thousand-dollar settlement for the illegal file(s) that were downloaded based on the internet user’s account or IP address.

Many of these subpoena deadlines have since passed, and now internet users who have been caught downloading are asking me what happens now.

Being that a majority of ISPs have clauses since the September, 11th 2001 World Trade Center attacks and the Patriot Act that followed which allow the ISPs to turn over subscriber information to third parties, regardless of the subscriber’s attempts to suppress the subpoena with what is called a motion to quash, it is likely that many ISPs have nevertheless turned over user information to these companies.

The next step is for the movie and music companies to do an analysis of which downloaders are easy targets, e.g., “low hanging fruits,” and which will be more difficult to approach. Because of the high cost in attorney fees in order to track down and contact the accused downloaders, they will likely classify users into groups — those that are unrepresented by an attorney, those that may have a defense (e.g., the download was from a cybercafe or some IP address where they will have difficulty proving that it was that user at that keyboard at that IP address linked to the download of that movie (or music file or piece of software), and last, those that will be difficult to approach [likely because they are represented by an attorney].

Once they are finished with the analysis, the phone calls, letters, and threats will start. They will first call those they believe will not defend themselves and they will collect the maximum settlement amount. Those that pose some threat to them (e.g., they have a defense), they will likely be offered a lower settlement amount (which the attorneys will claim will be significantly cheaper to accept and pay rather than defend themselves in a lawsuit, even if they are found not guilty). Last, but not least, those that are represented by an attorney will likely be contacted last, as the competent cyberlaw attorney will be aware of the law and defenses which would hinder them from collecting a settlement from their clients. Additionally, the attorney will force them to adhere to the law and he will know what acts and statements would be considered deceptive, threatening, or in violation of consumer protection laws. Because the other side knows that they can be quickly and effectively sued by the attorney if they err in attempting to collect a settlement from a potential defendant (and not an actual defendant, because in most cases they will try to extract a settlement without even filing a lawsuit).

This appears to be the state of affairs as they are right now with a number of the copyright infringement cases that are currently in progress. Obviously they could start contacting potential defendants to elicit a settlement as soon as tomorrow, or they could gather evidence and wait until the potential defendant has lost any records of a defense they would have asserted up to the statute of limitations period (this would likely be defendable based on a laches or similar defense). Similarly, they may go after each defendant WITHOUT doing an analysis separating out those that would be difficult to collect from from those who would be easy to collect from. We cannot know what goes on behind closed doors, but this would be bad business for them, so an accused internet user must assume that they will measure his ability to defend himself, and he must assume they will take into consideration whether there is a lawyer defending him or whether he is unprotected.


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