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Archive for January, 2012

Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) has been a controversial case from the beginning.  Judge Bates immediately noticed the faults with the case and he stayed the subpoenas.  Magistrate Judge Facciola (who has since taken over the case) is now facing scrutiny for every step he makes — not only in this case, but also in the AF Holdings, LLC v. Does 1-1,140 (Case No. 1:11-cv-01274) case.  In short, Judge Bates told putative defendants that they could file their motions under seal (meaning the defendants’ identities would remain anonymous), the Doe Defendants relied upon Bates’ order and following his instructions, they filed their motions under seal, and Judge Facciola reversed Judge Bates’ order.  [Facciola’s order essentially stated that motions to quash that were filed under seal will be filed publicly on February 1, 2012, revealing the anonymous defendants’ identities to the world (and consequently to Prenda Law Inc., where we all now know what they will do with these).] Based on the volume of calls that must be coming into Judge Facciola’s chambers [(202) 354-3130], he is no doubt now stepping on eggshells based on the hundreds of defendants who are actively tracking this case and I’m sure he does not like it.  No judge would.

To make matters worse for the Judge Facciola, the Electronic Frontier Foundation (“EFF”) filed for its attorney to appear in the case and file an amicus brief, (a “letter to the court informing them of the law and the issues,”) on behalf of the various Doe Defendants.  The attorney also requested that the judge “stay” the case (which essentially means to put the case on hold until the issues are resolved).  In short, if EFF is successful, all of the motions to quash which tomorrow are set to become public will be kept private.  At the very least, Judge Facciola will be educated as to the issues surrounding this case (first amendment issues, personal jurisdiction, improper joinder), and perhaps it will inspire him to sever and/or dismiss it [and its sister AF Holdings case].

My favorite part about EFF getting involved in the case is the technology-based declaration which every bittorrent user accused in these cases should be aware of.  While the technology-based arguments of non-infringement may be over the head of Judge Facciola, they no doubt in my opinion provide enough information to kill any bittorrent case, if any Doe Defendant is named.

To hit the nail on the coffin, so to speak, the EFF asked the court to take judicial notice of (meaning, to recognize and hopefully adopt the opinions of) other bittorrent cases which you have been reading about since this blog started back in 2010.  You can read the orders of the other cases in a neatly filed package here.

While this motion as far as I’m concerned should be a “one-two knockout punch” for this case, we must also realize that the character of the judge and his leanings (dare I say bias) also play a factor in whether he’ll allow this motion to move forward.  DC has never been a defendant-friendly state as we saw with the Dunlap Grubb & Weaver, PLLC lawsuits last year, and they have historically been known to disclose the identities of Doe Defendants who filed motions to quash filed under seal when they reject them.  This is why I am both optimistic that EFF has gotten involved, but I am also very cautious when it comes to how Judge Facciola will react to yesterday’s motion which is a clear affront to his previous order.  Again, no judge likes it when someone openly disagrees with his order.

[P.S. – Here is the link to Prenda Law Inc.’s response requesting that the court not allow EFF to intercede in the case based on their “anti-intellectual property” nature.  Other websites covered the topic just fine (see, SJD’s article here).]

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I’ve been bumping into more clients than ever who did not retain counsel and have now been “named” as a defendant in their bittorrent case (e.g., they were one of many John Doe Defendants, and now they have been served with paperwork and are now a defendant in their case).  The purpose of this post is to very explicitly state what you are up against at this point (this is for attorneys [unfamiliar with these cases] defending clients as well, as many of you also call me with the same questions as named defendants) and to give you your options.  Here are a few examples of named defendants:

Patrick Collins, Inc. v. John Doe 6, Ching Y., et al. (Arizona U.S. District Court; Case No. 2:11-cv-01602 [or 11-cv-1602]) (1/7/2012)

K-Beech, Inc. v. George H., Shana S., Richard S., Brian T., and Catherine V. (Arizona U.S. District Court; Case No. 2:11-cv-01604 [11-CV-1604]) (originally, K-Beech, Inc. v. John Does 1-54) (12/19/2011).

and K-Beech Inc. v. Derek L.K-Beech Inc. v. Paul F.K-Beech Inc. v. Carl P.; K-Beech Inc. v. Cesar V.; K-Beech Inc. v. Joseph G.; K-Beech Inc. v. Scott S.; K-Beech Inc. v. Hanna B., etc. (each in the U.S. District Court for the Eastern District of Pennsylvania)

In short, my opinion thus far has been that these so-called lawsuits each are pieces of one larger “extortion scheme” where the plaintiff attorneys have acquired your name and contact information (whether through early discovery in a federal court, or a lawsuit in a state court such as Miami Dade, FL, Maricopa County, AZ, or even St. Clair County, IL).  Then they called you and sent you what I described as “scare” letters telling you that if you did not settle by a certain date, they would name you as a defendant (either individually or as a smaller group of Does) in your home state’s federal court.  For whatever reason, you did not hire an attorney and you became what I referred to as “low hanging fruit,” meaning that you became an easy target because by not hiring an attorney, you told them that you are not taking their case seriously and that you probably did not educate yourself about what they could do to you.

Not realizing that the plaintiff attorneys are using the courts and the legal system to further their extortion scheme, you did not realize that these so-called “copyright trolls” could actually follow-up and “name” you as a defendant in your lawsuit.  As far as I’m concerned, it costs them essentially nothing to do this.  They have already sued you as a “Doe” Defendant, and by doing this they have already paid the filing fee.  The complaints are all essentially copies of one another so the paperwork is already written (and if there is a no-name local attorney involved, he has probably been given templates by the Lipscomb & Eisenberg, Prenda Law Inc., or other firm behind the scenes (e.g., if it is a Patrick Collins, Inc. or K-Beech, Inc. case), so naming a defendant is a piece of cake.  The hard part of finding a local attorney in many cases has already been done, and so it is just a matter of “naming” you as a defendant in the lawsuit.  Even Dunlap Grubb & Weaver, PLLC (parading as Media Law Group) has started to hire local counsel and sue dismissed defendants from their many cases from last year.

Many people have asked me whether at this point they can “hide” from the process server so that they are not properly “served.”  Many have also told me “I don’t live at that address anymore,” “I’ve since moved so they’ll never find me,” or “my ISP doesn’t have my correct [NAME SPELLING/ADDRESS/PHONE NUMBER/E-MAIL {pick one}].”  My answer to each one of these is to point out that you are not fighting a traffic ticket… This is a copyright infringement lawsuit in federal court. Whether or not you are guilty, these cases have the ability to broke you (and to potentially seize your assets and force you into bankruptcy).  It borderline offends me when people stick to their “I’m not guilty, they can’t do anything to me” viewpoint because this is simply not true.  The so-called copyright trolls have the power and force of the law to haul you into court and force you to spend tens of thousands of dollars to defend yourself or face a default judgement (essentially a finding of “guilty” because you did not timely file an answer once you were named).

If you are named as a defendant and you avoid service of process (“being served”), there are other ways to serve you.  Depending on the jurisdiction, they can post a notice at your last known address, they can publish a notice in the newspaper… the judge may even allow them to serve you by sending an e-mail to your last known e-mail address.  Don’t think that you are the first person to attempt to outsmart the legal system.  People have tried all these before (and some have even fled the country), and this is why every attorney now learns about the ins and outs of service of process in their first year of law school.

So once you are named as a defendant, depending on your circumstances, the general rule is that you have twenty (20) days to file an answer in federal court.  An “answer” essentially is a denial of their claims, along with all your counterclaims and defenses (remember, if you don’t plead it in your answer, you lose the ability to argue it later).  Fail to file your answer in time and you’ve already lost your case and will be facing a default judgement.  On this note, NEVER rely on a default judgement being $750 plus attorney fees & costs.  I know you have seen those few judgments (e.g., DC’s Call of the Wild Movie, LLC v. Does case) where named defendants didn’t respond and they only got hit with the minimum $750 statutory judgement (but then again, Judge Alsup in N.D. California hit two defendants with $30,000 default judgments each for not filing an answer).  Judgements can be $750, $30,000, $150,000, and based on the sole discretion of the judge, any number in between.  I would never risk my financial future on hoping a judge had a good day.  In short, if you are named and served, you must file an answer with the court.

This is the point where many defendants are when they  contact me.  They believe that they will “fight the good fight” and they will “take these f^%@&!! to court!”  What they don’t realize is that lawsuits cost money and time to fight, and that suddenly it becomes my job to manage their expectations and to explain to them that depositions take time.  Drafting and filing documents take time.  Hearings take time.  And do defendants want a barebones defense? or do they want me to give the plaintiffs hell as well?  This takes more time.  We CAN depose them, take interrogetories, and I’ve always said that with one winning case, we can bring down their whole extortion scheme.  But this all takes…time.  And time costs you money.  So be smart before you declare war on those who have sued you.  There are smarter ways to handle these cases, and so make sure your attorney knows your particular copyright troll, their capabilities, where they will crack, and where they will give in before you decide to step into the courtroom.

Now that you are named (and it took SEVEN PARAGRAPHS to get to this point), realize that your power of negotiating a settlement is severely limited at this point because the plaintiff attorneys have ABSOLUTELY NO REASON TO ACCEPT A SETTLEMENT AT THIS POINT.  I expect they are hoping that you do not hire an attorney and that you try to do this on your own, because if you mess up, they’ve just created a valid judgement against you which they can have the court enforce against you.  Now if you have retained counsel, maybe they *would* decide to settle because as you’re about to see, we’re about to cost them a lot of money.

After we file the answer on your behalf, because their so-called evidence is insufficient to prove that you (and not someone else in your household, or someone using your internet connection living within a 3/4 mile radius [depending on the strength of your router]) downloaded their client’s copyrighted video(s), they will need to hire a digital forensics expert. This is a costly step for them – you do not pay a penny for this — so that they can make a mirror image of your computer(s)’ hard drives and go through them with the equivalent of a microscope to see whether they can find a hint of the file(s) you are accused of downloading.

Assuming they do not find anything incriminating, they will pull you in for a deposition under oath where they will ask you many hours of questions (with me at your side; again, think time) about your bittorrent use, your internet habits and activity, your schedule on the date of the alleged infringement, and anything else they need to establish that it was more likely than not you who did the download.

Again, assuming you are not guilty and assuming you did not say anything incriminating in your deposition, we would likely file for what is known as a summary judgement, essentially telling the judge, “Judge, they looked at my client’s computer(s). They questioned my client. They did not find anything and they have no evidence to move forward. Please dismiss.” Assuming we win, we will ask the court for attorney fees and costs to reimburse you for everything you have paid me. However, remember again, you just spent six months of your life fighting this. Had you contacted me before you were swept into this path of litigation, we could have avoided having you go through this in the first place.

Remember, as much as each of these steps will take time to fight on your behalf (and I’m happy to do this for each one of you), I always tell people that it is important to be practical and smart.  Your plaintiff attorneys are looking at this like a business, and so should you.  I have no doubt they want to spend as little as possible to make the most amount of money from you that they can collect.  As giddy as they may be from getting a $150,000 judgement from you if they took you to trial, chances are they will never see a penny of it.  I have no doubt this is why not one of these bittorrent cases has ever gone to trial.  Your plaintiff attorneys know this, as this was the lesson we learned from the MPAA and RIAA lawsuits from a few years back (where they did bring defendants to trial) — that it is more expensive to get a few large judgments than it is to get many smaller settlements.  If I have not said this loud enough, let me say this explicitly.  Everyone (even each of your copyright trolls and their clients) has a cracking point and a monetary goal (yes, even after naming a defendant).  Your attorney should know 1) how far they are willing to go, 2) how far they have gone before, 3) at what point(s) they would consider a settlement and for how much at each point, and 4) how equipped they are to move forward in case you do decide to  use our firm’s services.   Without an attorney, you’re on your own and they have no reason not to trample all over you and demand as much as they can.  With an attorney, we are too much of a liability (one word from our client and we have no choice but to move forward with litigation) for them not to consider settling (contrary to what they’ll tell you) because we cost them time.

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