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Archive for November, 2012

This post is off-topic as far as reporting on bittorrent cases go, but I was thinking this morning about a better solution to copyright holders suing defendants for $150,000 per infringed title.

I have included a .pdf of this letter both here and on the blog’s POLICY page with my signature which I am comfortable for people to forward over to lawmakers, judges, etc.  If you would like to customize this letter or put your own signature or letterhead on it before you send it out, you have my permission to do so.  If anyone knows of an “e-mail your Congressman” website that I can upload this to, I’d be happy to start a campaign that way as well.

Dear ______________________________:

There is a problem with copyright infringement lawsuits against accused internet downloaders across the U.S. which I would like to bring to your attention. $150,000 statutory copyright damages is obviously an inappropriate damages amount for someone who clicks on a torrent file or downloads a piece of music, and it is my opinion that the copyright laws need to be reconsidered even in view of the statutes in place, and more specifically, the Digital Millennium Copyright Act.

Even though copyright laws do on their face appear to hold a downloader liable for copyright infringement, it is my understanding that it was not the intent of lawmakers to hold consumers liable for purchasing or acquiring copyrighted products and as a result, violating copyright laws in their acquisition.  Both from the viewpoint of the copyright owners and from the viewpoint of copyright holders, there is a problem with the current state of intellectual property enforcement as it relates to internet piracy. Copyright holders face a difficult path enforcing their copyrights in that they lack a mechanism to financially benefit from the infringement that takes place over the internet, and I encourage and discuss solutions in this letter to solve the “piracy” problem.

I. COPYRIGHT LAWS AND THE INTENT OF ITS FRAMERS.

It is my understanding that the intent of the copyright lawmakers when fashioning the Copyright Acts and their corresponding legislation (e.g., the Digital Millennium Copyright Act “DMCA”) were to prosecute commercial entities (e.g., movie theaters, the guy in NYC on the corner of 5th Avenue selling pirated DVDs, the gas station owners selling pirated DVDs, the online distributors who sell pirated DVDs ["burn DVD title on demand"], etc.), and to curtail piracy. Essentially, the copyright laws were written for anyone who makes a windfall off of copying or selling copyrighted media without giving the authors the choice of whether to sell and depriving the authors of the profits that they should make from their copyrighted works.

Now in my opinion, we were indoctrinated in law school to “read and obey” the law on its face. Every average lawyer does this. In my opinion, however, a lawyer should not only read the law on its face, but they must investigate the INTENT of the lawmakers, and then they ask themselves whether the law is correctly applied, or whether it needs to be reinterpreted, limited in scope, or outright changed or repealed. A lawyer is an advocate not only to uphold the law, but to interpret the law to do what is right, and here there will be many opinions [which is why we have an unbiased judiciary and lawmakers].

 II. REMEDIES GIVEN TO COPYRIGHT HOLDERS UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”)

In 1998, Congress passed the Digital Millennium Copyright Act (“DMCA”) where lawmakers were already aware of the internet, piracy, and the issues copyright holders faced in that their copyrighted works can be digitally (meaning “an exact copy”) replicated, copied, and distributed essentially for free, and with zero degradation in the quality of the copied work. And, while they were aware that individual downloaders were pirating and downloading copyrighted works, rather, they gave a remedy to copyright holders to force content providers (e.g., ISPs, website owners, etc.) to take down infringing materials [or hyperlinks thereto], or else face liability for copyright infringement themselves. This is frequently referred to as the “safe harbor” provisions which pretty much every website in the reach of U.S. courts complies with dutifully. In short, Congress put the burden of stopping piracy ON THE COPYRIGHT HOLDERS THEMSELVES to police their own intellectual property, and then they put the responsibility to stop copyright infringement ON THE WEBSITES AND CONTENT OWNERS because they were the in the best position to stop piracy.

III. “COPYRIGHT TROLLS” AND THE BITTORRENT-BASED COPYRIGHT INFRINGEMENT LAWSUITS

After more than TWO YEARS fighting the copyright trolls, I am shocked that these bittorrent lawsuits are still here and are growing in popularity by fresh and young attorneys coming out of law school. However, bittorrent lawsuits are nothing but a scheme and a scam to separate a family’s lifetime savings from the ISP account holder. “Copyright trolls” (meaning, copyright holders and their lawyers who sue individual downloaders for the infringement of their copyrighted works) do not have an interest in stopping piracy. Rather, they seek to encourage piracy so that they can sue more defendants and “shake down” more unsuspecting internet users regardless of whether the internet user downloaded the content themselves or not.

If copyright holders truly cared for protecting the integrity of their intellectual property, then they would focus their efforts on 1) REMOVING CONTENT AND LINKS from the bittorrent websites, and 2) PROSECUTING INDIVIDUALS WHO COPY, UPLOAD, AND INITIALLY SEED the pirated videos. I applaud copyright holders who watermark and track their content so that if and when their content is pirated, they can identify the so-called “pirate” immediately. I also applaud copyright holders who police their intellectual property and send takedown notices to website holders. I shame, however, copyright holders who fail to do their duty to police their own copyrighted content and instead 1) sue individual downloaders without first mitigating damages (meaning, trying to stop the piracy), or 2) send threat letters or DMCA notices to ISP account holders (“subscribers”) [rather than to website owners] to pay the copyright holders hundreds or thousands (or in some cases, tens of thousands) of dollars threatening, “or else we will name you in a lawsuit against you in federal court.”

Copyright infringement lawsuits have been around since the formation of our United States. And, they continue even today by companies who properly protect their intellectual property. However, the reason we do not hear about most cases is because there is nothing wrong with a company who sues a vendor which, for example, is copying DVDs and selling pirated content on the Amazon Marketplace. The reason we hear so much about these “copyright trolls” and “bittorrent lawsuits” is because they are so vile in that the copyright holder is 1) failing to do their duty to police their content and issue DMCA takedown notices, 2) they are suing individual downloaders rather than going after those who initially copied and uploaded (“the initial seeder” of) the copyrighted works, and 3) they are using settlement letters and scare tactics to shame, embarrass  and threaten accused downloaders that regardless of whether they are guilty or not, they must settle “or else.” This is a copyright troll.

IV. THE INEQUALITY BETWEEN A COPYRIGHT HOLDER AND AN ACCUSED DEFENDANT IN A COPYRIGHT INFRINGEMENT LAWSUIT

There is a clear disadvantage an accused defendant has in the courtroom. A copyright troll uses boilerplate letters, boilerplate motions, and they have refined their extortion scheme to lower their costs. Unlike the lawsuits by the RIAA or the MPAA, copyright trolls do not take their cases to trial and they do not fight on the merits of each of their cases. Rather, they hide and conceal their methods of tracking individual downloaders, and any time a defendant tries to fight back, they dismiss him and move on to other victims who do not have the funds, the will, or the ability to retain counsel and fight back. When plaintiffs dismiss these defendants, they do so in a way which is not “on the merits,” which deprives the prevailing defendant from receiving the attorney fees and costs that the Copyright Act provides for prevailing parties.

Further, copyright trolls encourage settlements by telling defendants that “it is cheaper to settle than it is to fight us,” and this is a true statement. There is a clear disproportionate advantage a copyright troll has over an individual defendant because most defendants do not have the resources to retain counsel, and since copyright infringement is a civil matter rather than a criminal matter (as far as these cases go), there is little to no legal help or lawyers offering to represent defendants “pro bono.”

Defense lawyers are often less than helpful as well in these cases. Many defense attorneys have agreements not to fight the plaintiff attorneys under the condition that the plaintiff attorneys give those lawyers a “lower settlement amount” for their clients. Some defense attorneys have outright verbal agreements to represent a client poorly to allow the plaintiff attorney to prevail over the defendant to establish some principle of law. Similarly, defense lawyers often charge large amounts of money to their clients in order to file motions in court which they know will not succeed. In addition, too often defense attorneys charge large amounts of money as far as retainers and hourly fees to represent clients, and their interest is not to represent defendants, but to push them to settle their cases. Thus a defendant in a bittorrent case often has little to no assistance from attorneys on either side, and are unable to obtain or pay for counsel to dutifully represent them in these cases. Thus, they are left without legal counsel.

Without the ability to protect themselves, defendants are often forced to attempt “self-help” legal tactics which often fail. Defendants are not lawyers, and they are unaware of the deadlines associated with lawsuits, and they are far from being experts in federal courts, the jurisdiction in which most of these cases are tried. Without assistance from those competent to try these cases, they are at the mercy of the copyright holders who consistently outmaneuver them in the courtroom.

V. PROPOSED SOLUTIONS TO SOLVE THE “PIRACY PROBLEM” WHICH BENEFITS COPYRIGHT HOLDERS AND PROTECTS INTERNET USERS.

For the above reasons, I ask that lawmakers reform the copyright laws to give accused defendants a way to protect themselves against copyright trolls, and to prevent a copyright holder from abusing the legal system by filing lawsuits against individual downloaders. I also ask the judges in the federal courts to narrowly interpret the copyright laws to prevent the injustice that takes place. My end goal is for the law to be reformed to allow copyright holders to benefit from those infringing their products, but only after they take steps to police and protect their intellectual property by filing takedown notices with the websites and content providers. There are a few solutions in order to accomplish this.

A. SOLUTION #1: COPYRIGHT HOLDERS SHOULD DEMONSTRATE THEY HAVE MITIGATED DAMAGES BY POLICING THEIR INTELLECTUAL PROPERTY

The law or the courts could make it a prerequisite to demonstrate that a copyright holder has diligently protected their copyrighted content (and thus they have mitigated damages) by filing DMCA notices with the website providing the links to the copyrighted content or to websites providing the content itself. The copyright holder would need to show 1) the actual torrent file that was downloaded, and 2) demonstrate that they filed DMCA notices to the website providers [plural] providing that content or links thereto. This solution has been proposed by both plaintiff attorneys and defense attorneys alike.

The immediate and obvious problem to this solution is that downloaders can only download torrent files which contain links, and once a DMCA notice is filed, the link will be taken down and thus the downloader will not be able to download the torrent. Thus, any downloaders who are sued for copyright infringement will have no notice that the content is copyrighted and that they might be subject to a lawsuit for downloading that file. One could argue that the law itself gives notice, but with popular websites such as Hulu, and with technologies such as TiVo which allow an individual to record and play back television shows and movies, what is legal and what is illegal becomes unclear to the average internet user.

B. SOLUTION #2: IMPLEMENT A COMPULSORY LICENSING PIRACY PROGRAM IN CONJUNCTION WITH A “SIX STRIKES” PROGRAM

With the most recent “Six Strikes” program instituted by the ISPs combined with the old model of “compulsory licensing” where radio stations pay a set amount to each artist every time a song is played, I believe that technology has created both a solution to piracy, and a way for a copyright holder to ethically and financially benefit from piracy.

With compulsory licensing, every time a radio station plays a copyrighted song, the copyright holder is entitled to a set fee which is paid to him. The fee is often a small amount of money, but the artist is compensated for each instance that their song is played.
The “Six Strikes” program is a copyright infringement warning system that has been put in place by the internet service providers (ISPs) to warn their subscribers when they take action which infringes a copyright holder’s copyrights. While the goal of the Six Strikes program is to educate and curtail piracy by 1) forcing that user to acknowledge that what they are doing is illegal, and 2) forcing them in some cases to take online instructional classes to educate them about copyright laws and how to properly use the internet so as not to violate the rights of copyright holders, the Six Strikes program could also serve the function to give notice to a downloader that if they continue to download copyrighted media, then they will be forced to take a compulsory license for the unlicensed media they download. In other words, the Six Strikes program can be used to give the required notice to the downloader that his activities are illegal, and that he will be subject to fines should he continue this course of action.

Once an internet user is given notice that his activities are infringing the rights of copyright holders, either the ISPs themselves can serve as the mechanism to administer the compulsory licenses and to extract the fees from its subscribers (e.g., as a fee on the subscriber’s monthly internet bill) whereas they would take a fee or a small percentage for their operating costs, or a third party company could track and administer the compulsory licensing program either independently or through the ISP.

1. DETERMINING “DAMAGES” IN A COMPULSORY LICENSING PROGRAM

As far as the amount of what the compulsory license should be, there are a few ways to look at this. Radio station compulsory licenses pay pennies on the dollar each time they play a song. Internet infringement compulsory licenses could do the same thing.
While lawmakers could determine the average cost of a movie (whether that be an adult film, or a motion picture, a song, or computer software [an application or a game]), and they could extract that amount from the internet user, they could also determine the average retail cost to purchase or rent a DVD containing the copyrighted media, and charge some multiple of that amount as a penalty because it was acquired or viewed through piracy. For example, if a movie costs $39.99 to purchase in a retail store, that amount, a fraction of that amount, or a multiple of that amount could be charged to the internet user who downloads that title. Similarly, if the content is of pornographic material where the content providers do not sell DVDs, but rather, offer membership subscriptions to their online websites (e.g., $39.99 for a month; or $129 annually, etc.) then the compulsory license could be that amount (“you break it you buy it”), it could be a fraction of that amount, or a multiple of that amount.

VI. CONCLUSION

As I write this letter, copyright infringement lawsuits against unsuspecting ISP account holders (who are often not the downloader) continue without the copyright holder taking any steps to mitigate damages, to police their content, or to curtail piracy. The lawsuits continue to be lopsided in that plaintiff attorneys (“copyright trolls”) minimize their costs and maximize the efficiency of their operations, while defendants continue to be harassed and victimized by the plaintiffs and their attorneys, often without having the ability or the benefit of legal representation. The copyright laws need to be reformed to prevent this kind of abusive litigation.

Warm regards,
Robert Z. Cashman, Esq.
Owner of the Cashman Law Firm, PLLC

I will revisit this letter from time to time to modify it to reflect new information and deeper understandings into the mechanics of piracy and compulsory licenses, and should new methods of curtailing piracy or compensating a copyright holder for copyright infringement arise, I will be happy to amend the letter as it is posted on the Cashman Law Firm, PLLC blogs to contain those new methods.

I urge all constituents to contact their congressmen and senators, and to share this letter to educate them about the issues of piracy not from the lopsided viewpoint of the copyright holder, but from a neutral perspective of protecting both the interests of the copyright holder and the accused defendants involved in these cases. I also urge accused defendants to share a copy of this letter with judges and magistrates of each copyright infringement case in every jurisdiction where such cases are found.

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Copyright Enforcement Group’s (“CEG-TEK Int’l”) DMCA letters have been sent out to thousands of would-be “John Doe” copyright infringement defendants to date for the alleged downloading of pornographic films. The problem is that they often ask for MULTIPLE SETTLEMENTS FOR THE SAME DOWNLOADED TITLE.

BACKGROUND: Just in case you did not read my first article on Ira Siegel’s / CEG-TEK’s DMCA Scare LettersI’m including these next two paragraphs to bring you up to speed.

Instead of CEG-TEK’s failed methods of suing hundreds of John Doe Defendants in one bittorrent lawsuit, CEG-TEK has concocted a turnkey method of scaring a would-be internet user into settling their case BEFORE THE PLAINTIFF EVEN FILES A LAWSUIT. Instead of a copyright troll paying a $350 filing fee and proving copyright infringement in front of a judge, and in lieu of hiring plaintiff attorneys to fight the ISPs in order to obtain the names, the addresses, and the phone numbers of would-be defendants (and noting that ISPs are no longer cooperating as easily as they used to), Ira Siegel and CEG-TEK have found a way using the Digital Millennium Copyright Act (DMCA) to have the ISP send letters to the alleged infringers, doing CEG-TEK’s dirty work for them.

The notice an ISP subscriber would receive would say something such as “Notice of Unauthorized Use of Registered Copyrights Owned by so-and-so,” followed by a Case #, a password, and CEG TEK International’s long and confusing “scare” letter threatening that if the defendant didn’t settle the claims against them online via their http://www.copyrightsettlements.com website (I am not including the link for obvious reasons of protecting your privacy; read my other article for details relating to IP address tracking, website failures, etc.), then Ira M. Siegel or one on CEG-TEK’s legal counsel would sue for violation of the U.S. Copyright Act, 17 U.S.C. 106.

The problem is that even though they are only asking for a settlement of $200 for each title [UPDATE: $500 per infringed title (prices per title for some production companies have gone up)], CEG-TEK IS NOT FILTERING OUT DUPLICATE DOWNLOAD ATTEMPTS.  So, a downloader who downloads a title such as Media Products, Inc. DBA Devil’s Film’s “It’s Okay! She’s my Step-Daughter” or Digital Sin Inc.’s “Fresh Outta Highschool” using bittorrent, and their bittorrent software attempts to connect to these files multiple times, -OR- if CEG-TEK monitors that you have downloaded various pieces of the same title multiple times (even when the IP address is the same), YOU WILL GET MULTIPLE LETTERS FROM YOUR ISP.

The problem I ask is — how does an accused downloader call up Ira Siegel — a KNOWN COPYRIGHT TROLL who has sued thousands of defendants for $150,000 per title, and who has sent out countless “scare” letters demanding thousands of dollars per title — how do you call up Ira Siegel and say, “yeah, I downloaded it,” ***ADMISSION OF GUILT*** “but I only did it once, not three times”???

Thinking with my jaded lawyer mind, part of me wonders whether CEG-TEK Int’l have purposefully left the duplicate titles on their DMCA notices to lure would-be defendants to call them up, admit guilt [that they have done the download, “but only once,” and then CEG-TEK and Ira Siegel would have all the ammunition that they would need to sue that downloader in federal court.

Anyway, I don’t need to say that an attorney (our firm or any other firm) could negotiate down the duplicate downloads without admitting guilt or incriminating you as you might do on your own if you called them yourself.

PERSONAL NOTE: I still hold the opinion that if they really have a claim against you than they should present their claim in the form of a lawsuit in federal court where a judge will make them prove their claims against you (and quite frankly, I am even more of the opinion that they should not be suing downloaders AT ALL [and that they should focus their efforts on taking down infringing content using the DMCA remedies given to them by the law]), but I also understand the economics involved with someone wanting to just make this go away at the early stages.

Once again, if you have not already done so, go back and read my initial article on CEG-TEK Int’l’s DMCA letters and what I think of them.

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This will be a tough article to write, but someone needs to say this.  If you are accused as a John Doe Defendant in a bittorrent lawsuit, your first step needs to be to make your identity online disappear. 

I would use politically correct terminology such as “manage your online presence,” but simply quite frankly, “disappearing” yourself and making your online presence go away is probably the most effective thing that you can do in order to avert the attention of the copyright trolls to other John Doe Defendants.  If they cannot find you online, then they will not know how to pressure you to pay them their extortion settlement amounts.

This is obviously not well known or else we all would do it, but quite frankly, everything you do online is tracked these days.  Marketing companies, commercial websites such as common as Amazon.com, social networking websites such as Facebook, LinkedIn, Twitter, Myspace, Google+, etc. all track you by 1) the information you provide them, and 2) by your activities.  Have you ever wondered why you can log onto so many sites using your Facebook login?  Is this because they are being nice or because they are recording your search habits to create massive portfolios all about YOU.  Even when you are smart and you manage your privacy settings in these sites, they still tell volumes about you and your friends without your permission.  And, even when you lock everything down, there are still companies who create profiles on you based on your credit card transactions, where you register your driver’s license, and where you choose to keep your body (e.g., where your smart phone’s GPS logs the location associated with your cell phone provider’s account).

Quite frankly the lack of privacy we have is staggering, and what little we can do to protect ourselves online we should do.  And, for the inevitable volumes of data that are compiled on each of us without our permission, there are mechanisms in place to remove yourself from their databases.  Since much of this is online, removal in many cases is instant, and it is worth the effort and time to do this (even if you are not accused in a lawsuit).

Just a few days ago, there was a LifeHacker article entitled, “AdjustYourPrivacy Locks Down Your Entire Internet Life from One Page,” where Lifehacker discussed a website — http://www.adjustyourprivacy.com — which has buttons that you can click on to manage your online privacy.  The website has essentially five steps (detailed below), and I suggest that each one of you visit this page and work through the links on the site.

STEP 1: ADJUST THE PRIVACY SETTINGS ON THE SOCIAL NETWORKING WEBSITES YOU ARE ON.

This is a bit complicated, but the amount of information about you that you can prevent from being leaked to the world is staggering.  I am not advocating closing down your Facebook or your LinkedIn accounts, although in my opinion this is the best option, especially for those of you who take pictures and videos of yourselves when you are at a bar after a few drinks.  I am also not advocating making yourself invisible to your friends, but I do think that you should be vigilant to make sure you actually know the people who are your friend, because for all you know, a plaintiff attorney can look at one social network of yours where you have 800 friends and choose a buddy of yours from that account and do a friend request which most people will approve and click “okay” without thinking twice or investigating who is really “friending” them.  This is called social engineering and is outside the scope of this article.

What I AM suggesting here is taking the time to read the privacy options and setting your privacy settings to avoid outside “non-friends” from seeing your posts or your profile.  I would also obviously shut down all applications “apps” linked to your account which often report everything you do to the companies I am discussing in this article.  Take “Angry Birds,” “Farmville,” or any of the online free games as an example.  Did you ever wonder why these game are free and what they report about you?  Did you think they merely show banner ads to you? Or are they also installing cookies and do they stay resident on your machine after you close the game watching and reporting your every move?  I am not being paranoid here, I am merely telling you to be smart.

STEP 2: LOOK YOURSELF UP ON THE SAME WEBSITES THAT YOUR PLAINTIFF COPYRIGHT TROLLS PROBABLY USE.

STEP 3: REMOVE YOURSELF FROM THE COMMERCIAL DATABASES WHICH HAVE BEEN BUILT BASED ON YOUR ACTIVITIES AND YOUR PUBLIC RECORDS.

You’ll notice that to do a full search, many of these services charge a subscription fee which no doubt your plaintiff attorneys pay.   You’ll also notice that there are likely MULTIPLE RECORDS on you based on the many places you have lived in the past.  Don’t just look for your current information and your current e-mail.  Dig a bit.

STEP 4: DO SOME RESEARCH ONLINE ABOUT THE OTHER TOOLS TO SHUT DOWN ACCOUNTS YOU DO NOT USE AND TO PROTECT YOUR PRIVACY.

STEP 5: LEARN TO BROWSE ANONYMOUSLY AND TO PROTECT YOUR INTERNET TRACKS:

Even though everything that I blog about and everything that I post online is not done anonymously, if I was not an attorney helping clients accused in these bittorrent cases, I would certainly be anonymous.

When I surf the web, I do it anonymously.  When I make financial transactions, I always make sure I am using SSL or a secure and encrypted connection.  When I browse my personal e-mail or even check the news, I do it using VPN software and if this is not feasible, I use a custom browser (e.g., JonDoFox) on top of my Firefox browser for complete protection.  I also always have OpenDNSCrypt running (which in my opinion doesn’t do much, but for whatever it is worth, I have it running because I am not paranoid, but I am not giving the ISPs (who also collect information on you) data on me if I don’t have to).  I also encrypt my drives on all my computers and regularly clean traces of my activities on my computer.  That way, if my computer is taken at an airport, or if for some reason I am accused of something (e.g., copyright troll tries to get MY computer to learn about a client), everything is encrypted.  This is simply a responsible and prudent thing to do.  With everything I have written here, in my opinion, it is irresponsible NOT to be vigilant with your private information.

All this being said, there is a lot about me which is still online.  But what you see online, chances are that I LET IT BE ONLINE knowing that many will see it.

STEP 6: IF YOU ARE NAMED IN A LAWSUIT, DO EXACTLY THE OPPOSITE OF WHAT I HAVE DESCRIBED ABOVE AND FLOOD THE INTERNET WITH INFORMATION YOU WANT THE INTERNET TO KNOW ABOUT IT.

This is probably the most important point, and it is counterintuitive.  If you are named in a lawsuit, eventually a site such as RFC Express (http://www.rfcexpress.com) or other legal docket websites will index your name and search engines will post it online making it obvious to employers and peers that you have been implicated in a lawsuit, sometimes for embarrassing content.

While overtly saying this is outside the scope of this article, it is probably a good idea to create as much content as you can (e.g., join social networking sites, and “manage your online presence”) to BURY the lawsuit (e.g., 12 pages in) so that when someone searches for your name on a search engine, the lawsuit will not show up.  That way, your involvement in this lawsuit will not hurt your future chances for employment, or for your business to get contract with customers, etc.  

If you are named in a lawsuit, my opinion is that you should not only TAKE DOWN the information about yourself in STEPS 1-5 that I have outlined above, but you should SET UP SOCIAL NETWORKING ACCOUNTS AS POSSIBLE, FILLING IT WITH CONTENT THAT YOU WOULD LIKE THE WORLD TO KNOW ABOUT YOU.

I cannot say this strong enough.  You need to protect your privacy, and if you are involved in a lawsuit where opposing counsel is a copyright troll, a patent troll, or anyone who will want to use the information online against you to solicit or extort large sums of money from you, it is wise to protect yourself and manage your online profile.  I hope this helps.

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I am looking at these new cases, and I want each new John Doe defendant to understand that these new cases that I am about to discuss are child’s play. Most of the new attorneys in these cases are newer copycat trolls who are hopping on the success of the bigger copyright trolls we read about daily in the blogs.

While the purpose of this blog is to discuss copyright cases and attorneys who sue John Doe Defendants en masse, I want to point out that this is no reflection on whether or not the attorneys are nice people.  At least one attorney here (Richard Fee) is described to me as being a nice guy, and in the comments section you’ll read about a particular attorney and his sidekick complaining about why I am making a new copyright troll feel ashamed about being a copyright troll.  My response:  Just because an attorney is a copyright troll doesn’t mean he or she is not a nice guy.  Kevin Harrison is a nice guy.  Doug McIntyre is a nice guy, and to many people’s surprise, Mike Meier is a nice guy too.

Depending on who you ask, I’m a nice guy too.  That being said, as soon as these attorneys decide to start filing copyright infringement lawsuits and they start suing defendants rather than focusing on taking down the infringing content which in my opinion is the remedy given to copyright holders by Congress via the Digital Millennium Copyright Act (DMCA), I leave my “nice guy” hat at the door and discuss the cases and their attorneys for what they are — copyright trolls.

Here are a few new cases to give you a taste (pardon the cynicism):

In the Florida Middle District Court:
Bait Productions Pty. Ltd. v. Does 1-73 (Case No. 8:12-cv-02554)
Bait Productions Pty. Ltd. v. Does 1-41 (Case No. 8:12-cv-02555)
Bait Productions Pty. Ltd. v. Does 1-52 (Case No. 8:12-cv-02556)

Richard Fee of Fee & Jeffries PA (attorney for Bait Productions Pty. Ltd.) — you filed each of these on the same day.  Don’t you think the courts will see that you are copyright trolling and that they will consolidate and dismiss your cases?

Now let’s go to the Georgia Southern District Court: [NEW COURT]
R & D Film 1, LLC v. Does 1-80 (Case No. 4:12-cv-00281)
R & D Film 1, LLC v. John Does 1-26 (Case No. 4:12-cv-00282)
R & D Film 1, LLC v. John Does 1-37 (Case No. 4:12-cv-00283)
R & D Film 1, LLC v. Does 1-45 (Case No. 4:12-cv-00284)

Nathan Belzer (attorney for R & D Film 1, LLC)… Really? Are you really defending your R & D Film 1, LLC client’s interest in stopping piracy? Or in making a quick buck by suing downloaders? Do you even know about R&D Film 1’s other cases? Or did you just take the client thinking that you’ll make a few bucks?

Night of the Templar, LLC v. John Does 1-34 (Case No. 4:12-cv-00285)

Same attorney as above. Nathan Belzer.  I like the name of the plaintiff.

What about the Ohio Northern District Court: [NEW COURT]
Safety Point Productions, LLC et al v. Does 97-177 (Case No. 1:12-cv-02831)

Umm.. what happened to 1-96? Also, the “et al.” in this case includes Voltage Pictures, LLC. Douglas Riddell Jr. (new guy), did you think you would fool us? We have seen Voltage Pictures, LLC cases many times before in D.C.  Do you think you’ll be more successful than Dunlap Grubb & Weaver, PLLC was with this SAME PLAINTIFF?

R & D Film 1, LLC v. Does 142-162 (Case No. 1:12-cv-02832)

Again, the funny Doe numbering by Riddell. This Douglas Riddell guy is funny. I’m going to enjoy his cases.

Safety Point Productions, LLC et al v. Does 1-96 (Case No. 1:12-cv-02820)

Finally, Douglas Riddell Jr. learns how to count from “1.” Again, Voltage Pictures, LLC is a plaintiff in this case.

And,
R & D Film 1, LLC v. Does 1-141 (Case No. 1:12-cv-02822)

Again, Doug Riddell.

Now, let’s go to Illinois Northern District Court:
R & D Film 1, LLC v. Does 1-37 (Case No. 1:12-cv-09036)
R & D Film 1, LLC v. Does 1-92 (Case No. 1:12-cv-09039)
R & D Film 1, LLC v. Does 1-103 (Case No. 1:12-cv-09041)
R & D Film 1, LLC v. Does 1-66 (Case No. 1:12-cv-09043)

Todd Parkhurst (of Michael A. Hierl of Huges Socol Piers Resnick & Dym Ltd.) must be dym-witted to think that they would succeed with a copyright troll case in the Northern District of Illinois. John Steele killed copyright trolling for this federal district long ago — Todd, did you ask yourself when R&D Film 1, LLC contacted you WHY THEY CONTACTED YOU AND NOT JOHN STEELE (OF PRENDA LAW INC.)? For a copyright troll, Steele would have been a better choice.

Hmmm… Also in Ohio Northern District Court:
Safety Point Productions, LLC et al v. Does 1-14 (Case No. 1:12-cv-02812)

Did you notice how R&D Film 1, LLC and Safety Point Productions, LLC cases are each filed by the SAME SET OF ATTORNEYS IN EACH DISTRICT? I smell a new IP monetization company behind the scenes.

That’s it for tonight. Back to work on some real cases. If I’ve offended anyone, I’m not sorry — new attorneys shouldn’t be taking on copyright trolling cases.  If you are really interested in stopping piracy of your copyrighted content, then there are better ways to police your client’s copyrights than to let the infringement continue and then sue the downloaders.  Try a DMCA take down letter one day.  You might find that it works.

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I sometimes feel like a duck in a pond — everything seems calm on the surface, but under the water, I am directing local counsel with a fury. No doubt copyright trolls operate the same way (John Steele did it, and quite frankly, this is the only way a multi-jurisdictional law practice can properly operate).

The problem happens, however, when one of your local counsel drowns. What do you do — do you let them take the fall? Or do you do whatever it takes to support them even when your cherished law firm name is not on their court filings?

I am sad to share that my nemesis of sorts, Doug McIntyre, has drowned, and his copyright troll employer appears to have let him take the fall.

Doug McIntyre was the name that appeared on a number of Prenda Law Inc.’s cases — names such as Millennium TGA, Inc., Bubble Gum Productions, LLC, Pacific Century Int’l, Ltd., and Sunlust Pictures, LLC (to name a few). What I thought was commendable was that for reasons we cannot discuss (think, “There is no honor among thieves. Copyright troll thieves”), Doug went ahead and started taking on his own clients — West Coast Productions, Inc., Combat Zone Corp. — and started to mold himself into a copyright troll rather than local counsel for someone else. I actually thought it was commendable that he was going off on his own and was standing on his own two feet rather than being a patsy for some other troll.

But then the KHOU Channel 11 News did a story on Doug McIntyre (as documented by DieTrollDie here), and reporter Scott Noll pinned Doug McIntyre as the mastermind copyright troll for First Time Videos, LLC and many of Prenda Law Inc.’s clients. Prenda Law Inc. said NOTHING and let him take the fall.

On a personal note, even though Doug and I are enemies on paper, I couldn’t help but to feel bad for him because he was merely local counsel filing motions for his employer, John Steele, the master copyright troll himself. And yet, Doug’s reputation here in Houston is tarnished as being the fall guy for someone else. As Captain Duck, I want to reiterate here that I would not let any of my local counsel in any state take the fall, and that all blame would always rest with my firm, the Cashman Law Firm, PLLC.

That being said, I’m sorry to say that as of yesterday, it appears to me as if Doug McIntyre has withdrawn as counsel from all of Prenda Law Inc.’s cases, and like other copyright trolls (e.g., Kevin Harrison), he appears to have left the game.

MCINTYRE’S TEXAS SOUTHERN DISTRICT CASES:
Bubble Gum Productions, LLC v. Does 1 – 60 (TXSD; 4:12-cv-00262) — WITHDRAWN
Millennium TGA, Inc. v. Doe (TXSD; 4:11-cv-04501) — WITHDRAWN
Pacific Century International Ltd. v. Does 1-20 (TXSD; 4:12-cv-00698) — WITHDRAWN

As Doug’s replacement, Prenda hired a new “Doug,” Doug Clemons, who has “significant Federal Court experience which he gained from flood insurance litigation.” Aside from the joke that he has relevant litigation in torrent litigation (my apologies for the dry humor), this new “Doug” has ZERO experience in copyright law. While I would ordinarily say “this will be fun” (as I do anytime I see a new copyright troll), quite frankly, even with this new patsy at the helm, I’m still fighting John Steele in these cases because in my humble opinion, Steele is the one filing the motions in the cases anyway. Thus, I expect to see more of the same.

In sum, welcome Doug Clemons, Prenda Law Inc.’s new patsy here in the Southern District of Texas (and let’s hope you have the originality to fight your own cases), and my condolences to Doug McIntyre, the local counsel who took the fall for Prenda Law Inc. I obviously say all of this with a bit of reservation, because you shouldn’t have taken the copyright troll cases in the first place, as Doug Clemons and his Manfred Sternberg & Associates, PC law firm are about to learn the hard way.

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I was floored when I saw this.  A proactive John Doe Defendant (Dan Krebs) wrote Judge Facciola asking him why he ordered copyright trolls in the Patrick Collins, Inc. v. Does 1-72 (Case No. 1:11-cv-00058) case not to contact Doe Defendants until they are named and served, but in the Hard Drive Productions, Inc. v. Does 1-1,495 (Case No. 1:11-cv-01741) case, the judge continues to allow John Steele and his Prenda Law Inc. gang to do whatever they want with the Doe Defendants (and consequently, Steele is sending out “scare” letters to the unnamed defendants).

While the lack of consistency between rulings from Judge Facciola is not surprising, I cannot help but to think of the words, “bias, corruption, and perhaps cronyism” when I think of his treatment of these bittorrent cases.

What floored me, however, was the “F’you” order he issued in response to Dan’s letter to the court.  In short, he stated,

“The Court notes that it will not answer this correspondence since an extra-judicial comment about matters pending before it is inappropriate.”

Or, in other words, “F’You.  Don’t tell me what I can and can’t do in my own court.  This is MY WORLD, MY PLAYGROUND, and I will play however I want to!”

My opinion:  Kudos to you, Dan.  Your letter was proactive, and you called out the judge on his inconsistent rulings.  It is my opinion that all judges should have watchdogs like you to force them to adhere to their own precedents.

Attached is Dan’s Letter sent to the court.

And, attached is Judge Facciola’s response.

[NOTE: Scribd is experiencing issues right now. Will update links later.]

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UPDATE: Read my note at the bottom of this article for comments about IP tracing issues when you visit CEG-TEK’s settlement website.

A troubling number of people write me who receive “DMCA scare letters” (usually in the form of an e-mail from Copyright Enforcement Group (CEG-TEK) signed by Ira Siegel), and this blog generally neglects these victims because there is no lawsuit filed against anyone — just a “we might sue you if you don’t settle” e-mail which arrives from the ISP.  In the past few days, I have found that the inquiries have spiked and I am writing the same letter to a number of people.  To save time, I am posting my e-mail response online.

The letters generally ask for $200 per infringement, and there is usually only one or two alleged instances of infringement.  The problem that appeared most recently is that now Copyright Enforcement Group is sending letters for movies which appear not to have copyright protection.

Thank you for contacting me about your DMCA issue.  I’m answering you honestly because you are correct that this DMCA letter scam appears to be just that — one more way of extorting money without having to file lawsuits against anyone.

I suspect that you are correct that there is a possibility that the films are not copyrighted, but you must take into consideration that since you are referring to a film which is decades old, there is not one copyright law to watch out for, but there were multiple versions of the Copyright Act which were in effect as the statutes transitioned into its current form.  So while under the current copyright statute there might be copyright protection for a particular kind of film or video, past statutes might give different protections for it (and note that at one time, pornography was not even copyrightable).  You also need to take into consideration that U.S. Copyright Law gives copyright protection to foreign-made films, and this might be one.

As you no doubt know, with some obvious exceptions, I charge a flat rate to handle copyright matters.  For your “DMCA scare letter” issue, included in that flat fee would be to research whether there is a copyright or not, and what their legal rights are.  But to keep this simple, we both know their extortion strategy, and we both know that their online form [@copyrightsettlements.com] provides a release from claims for $200 each.  While I have never seen anyone sued as a result of ignoring their letters, $200 x 3 is still less than having me research and argue your issue (especially where there is no lawsuit and there may never be one).  That being said, if you didn’t want to deal with their website (because of the games they play where I have heard of people being sued who went online and the site failed [whether by design or by bad luck] or they missed their deadline and they could no longer settle) or you wanted me to handle the transaction, I’m happy to handle all three transactions for one small fee.

Long story short, you have some quick decisions to make before your November 4th date.  If you want me to handle this for you, let me know and I’ll e-mail you a contract for you to sign and get back to me, and I’ll e-mail you a link that you can click on to process your payment.  I’ll also need you to e-mail me copies of each of the DMCA scare letters, and I’ll take care of the rest.  Once again, I am not advocating settling this — I think this is one more extortion tool [of many] up their sleeve — but if you wanted to dispose of it quickly, this is the cheapest and most effective way to do so.  Unlike the bittorrent lawsuits, I don’t think you need to pay me to research and fight this because you have no lawsuit yet against you.

NOTE: One more note for those who are security-minded on the topic of IP tracing and CEG’s website “which sometimes fails.”  I understand that CEG-TEK tracks IP addresses who visit their website.  As a lawyer, I think it would be a bad idea for someone facing a copyright infringement lawsuit to sign onto a website possibly with the same IP address as the person who allegedly downloaded the copyrighted materials.  I would suspect that CEG-TEK is not so evil that they have an app running that if there is an IP address match, the site fails [when you try to process your payment] and they automatically send a second scare letter for $3,500.  At the very least, however, you want a lawyer to make sure that the contract they give you will protect your interests because by logging into their website and using their “secret code” to access your “secret” settlement amount, and then by entering your full name, address, phone number, and credit card information [which means that you just identified yourself as being that downloader, and so they need no ISP subpoena to identify you], that contract better release you from liability.

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