Comcast Fights Prenda… Victory for its subscribers!

Congratulations to the Texas Millennium TGA, Inc. defendants who (with the assistance of their Comcast ISP) will never have their information shared with Prenda Law Inc., Doug McIntyre (Prenda’s local counsel), or Millennium TGA, Inc. Essentially, you have won your case because the copyright trolls will never know who you are (without great effort).

In short, as we discussed back in our “Forum Shopping” article on 5/16, Millennium TGA, Inc. made the mistake of suing the same “John Doe” defendants in Texas as they did two weeks before in DC. This wasn’t a mistake — the judge that was assigned to their DC case (referred to as “MILLENNIUM TGA I“) — Judge Wilkins — was known to be unfriendly to copyright trolls. As soon as Prenda Law Inc. figured this out, they dismissed MILLENNIUM TGA I, and using their local attorney Doug McIntyre in Texas, they filed “MILLENNIUM TGA II” [Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501)] here in the Southern District of Texas.  When the Texas judge gave the okay for Prenda to demand the names of the subscribers from their ISPs, Comcast recognized the similarities of the John Doe Defendants to the DC case just dismissed, and they refused to comply with the rubber stampped subpoena given to Millennium TGA, Inc. by the Texas judge. Millennium TGA, Inc. (through Prenda Law Inc., their attorneys) filed a lawsuit against Comcast in DC (MILLENNIUM TGA, INC. v. JOHN DOE (Case no. 1:12-mc-00150), also referred to as “MILLENNIUM III“) asking the court to force Comcast to comply with the Texas judge’s subpoena and hand over the names, addresses, and contact information for the subscribers implicated in the MILLENNIUM TGA II Texas case.

Then, after an adverse ruling by the DC court which [in its order by Judge Alan Kay, order now overturned] forced Comcast to comply with the subpoena, John Seiver (Comcast’s attorney) wrote an amazing appeal which resulted in the DC case being transferred back to Judge Wilkins — the enemy of the copyright trolls. We wrote about this in our “Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.” article on 5/29.

Now, almost one month later, I am happy to share that Judge Wilkins issued the order we have been looking for all along. In his ruling this Monday, he DENIED Millennium TGA, Inc.’s motion to compel Comcast to comply with the subpoenas (and hand out the subscribers’ information). In other words, congratulations to the Cashman Law Firm, PLLC clients who have been entangled in this mess — your plaintiff attorneys Prenda Law Inc. and their local counsel Doug McIntyre will likely NEVER know who you are. In addition, congratulations on your victory in your Texas case, because without knowing who you are, they cannot name you as a defendant, and they cannot move forward against you. Score!

Food For Thought Moving Forward:
Okay, here is the silver lining. For those of you who do not have Comcast as your ISP, your Texas case is moving forward as usual. Similarly, for those of you who do not live in Texas, Judge Wilkins has ordered that Comcast turn over to Prenda Law Inc. ONLY the CITY AND STATE which is linked to your accused IP address. That way, if Prenda wishes to file a follow-up lawsuit against you, they can sue you in your home state’s federal court… or not. Here is my thinking.

Remember the “two-strike rule” in the Federal Rules of Civil Procedure (“FRCP”) Rule 41?? — a dismissal in the Texas court in a number of John Does’ cases would be the second dismissal [which is deemed to be "on the merits."] This could preclude your copyright trolls from filing suit against you a THIRD time in your home state’s federal court. See DieTrollDie’s “Two Strikes and You’re “Out!” – FRCP 41 & Copyright Trolls” article, and for more discussion on the topic, see Sophisticated Jane Doe’s “A Trolling Lawsuit Ends With Style” article here.

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Comcast wins battle against Millennium TGA & Prenda. Subscribers lose.

It is always nice when one judge reaches into another judge’s docket and removes a case from his docket.

While I cannot tell if this is exactly what happened here, all I can say is that Comcast essentially just won their “forum shopping” case against Prenda Law Inc. relating to their Millennium TGA, Inc. v. John Doe (Case No. 4:11-cv-04501) case in the Southern District of Texas (a.k.a. “MILLENNIUM II”). BUT before you go off celebrating, Comcast is STILL under an obligation to hand out your information. Watch out!

To recap, if you remember from my “Forum Shopping” article on 5/16, Millennium TGA, Inc. sued 939 John Doe Defendants in DC (“MILLENNIUM TGA I”). When they learned that Judge Robert Wilkins (who killed a prolific bittorrent case) was assigned to the “MILLENNIUM TGA I” case in DC, the Prenda Law Inc. attorneys for Millennium TGA, Inc. dismissed the case and then re-filed it in the Southern District of Texas (Case No. 4:11-cv-04501) (“MILLENNIUM TGA II”) suing essentially the same John Doe Defendants as they did in the “MILLENNIUM TGA I” case in DC which they voluntarily dismissed when they learned that Judge Robert Wilkins was the judge assigned to that case.  The Texas judge rubber-stamped their request to serve the ISPs with subpoenas to obtain the contact information of the 939 John Doe Defendants, and Prenda Law Inc. sent out the subpoenas to the ISPs. Comcast (one of the ISPs) saw the obvious forum shopping (actually, “judge shopping”) issue (among others) and refused to comply with the subpoenas. Prenda Law Inc. sued Comcast in DC (what I called “MILLENNIUM TGA III” in my 5/16 article).

In the MILLENNIUM TGA III case in DC (which is essentially Prenda Law Inc. suing Comcast in order to force them to comply), Magistrate Judge Kay ruled against Comcast telling them that they must comply. Comcast appealed, BUT THE JUDGE’S ORDER FORCING COMCAST TO COMPLY IS STILL VALID AND IS STILL IN EFFECT! So what exactly is going on?? What happened today??

On 3/26, Comcast noticed that Prenda Law Inc. violated the court’s “judge shopping” rules (LCvR 40.5(a)(4)) by not reporting that its new case [assigned to Magistrate Judge Kay] was substantially related to the “MILLENNIUM TGA I” case that it voluntarily dismissed when it was before Judge Wilkins.

According to the DC local rules, to prevent contrary rulings by different judges for the same issues, if two lawsuits are substantially related (here, they are essentially identical), all subsequently filed cases get assigned to the original judge.

Knowing this, on 3/26, Comcast filed a “Request For Judge Reassignment” which was ignored until this morning.

As of this morning, District Judge Ellen Segal Huvelle took the case away from Magistrate Judge Kay and reassigned it to Judge Robert Wilkins — the judge it should have gone to originally. Woohoo! Comcast’s victory is palatable at this point, because we can almost predict with certainty that he will rule in Comcast’s favor and will allow them NOT to comply with the subpoenas in the Texas MILLENNIUM TGA II case.

The problem is that all you see on the docket is a granting of the 3/26 motion for reassignment. Comcast appealed Magistrate Judge Kay’s terrible ruling against it, and Prenda Law Inc. filed a response to which Comcast responded to, but THERE WAS NEVER A RULING ON THEIR APPEAL which means that JUDGE KAY’S ORDER IS STILL IN EFFECT! COMCAST IS STILL UNDER AN OBLIGATION TO COMPLY WITH THE SUBPOENAS!

So in short, I have no doubt that Judge Wilkins will side with Comcast. However, I just don’t know if he has enough time to stop what he is doing (judges don’t only spend their days only reading these pornography-based bittorrent cases) and write an order 1) granting Comcast’s appeal and overturning Magistrate Judge Kay’s order [which is still in effect], and 2) granting Comcast’s motion for an extension of time to comply with the subpoena (which for many people, the deadline is today).

So while Comcast has essentially won the battle, they have not yet won the war. Comcast is still under the obligation to comply with the subpoenas.

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MY OPINION:
…On a personal note, I feel that it is important that Comcast subscribers take note of the CONFLICT OF INTEREST that is apparent even in cases such as this one.  Comcast has been blindly complying with Prenda Law Inc.’s subpoena requests for almost TWO YEARS now.  They have opened up their own “Subpoena Compliance” division and have hired new staff (twelve new full-time employees, if my memory serves me correct) just to comply with these subpoena requests. They have entered into private agreements where Prenda pays them a certain sum of money for each IP address lookup (~$45 per IP address, give or take), and thus COMCAST RECEIVES A FINANCIAL BENEFIT FROM COMPLYING WITH THE SUBPOENAS.  On top of that, while I have spoken to John Seiver and I believe he is a very skilled attorney (remember the work he did in bringing down the Digiprotect case almost two years ago?), I cannot help but to be suspicious that this whole lawsuit is a PUBLIC RELATIONS STUNT solely to boost the image of Comcast.  After all, I must ask you — where were they until now? Have they filed ONE motion to quash on behalf of their subscribers? Why not? After all, with all the thousands of failed motions to quash filings attempted by their subscribers, Comcast could have SUCCESSFULLY filed motions to quash on behalf of its subscribers [they had standing in each case to object, and judges were dumbfounded why they never got involved], but they never did. Why not?

I also would like to mention that Comcast was one of the first ISPs to sign on to the MPAA/RIAA’s “six strikes” program (now on hold) which will no doubt be wreaking havoc on their subscribers in the near future.  So while I applaud John Seiver and Comcast for fighting and [what will likely be] WINNING the case against Millennium TGA, Inc. and Prenda Law Inc., I still need to ask myself on behalf of my clients, where were they until now? And, “will they still “accidentally” comply and collect their fee?” I would like to remind you that this has happened before.

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Being accused of file sharing is NO LAUGHING MATTER.

To my readers:

A few days ago, Wall Street Journal reported that a Minneapolis federal court found Jammie Thomas-Rasset guilty of violating copyright law.  Jammie is a single mother.  The court ordered that she pay $1.5 million for sharing 24 songs over the internet.  The plaintiff was the Recording Industry Association of America (“RIAA”).

I’m posting this piece of information to impress upon those contacting our law firm — the Cashman Law Firm, PLLC — that contrary to what you’ll read on the forums, the threat of being sued is real.  This is just one example of a case where the accused internet user likely read about low settlement amounts, and when the RIAA offered her a $25,000 settlement [where the proceeds of that settlement would go to a music-related charity fund], she rejected that offer because she didn’t believe such a lawsuit could happen to her.

I want to point out that judgement is for sharing a number of SONGS.  Our potential clients are looking to defend against downloading MOVIES.  Think for a moment about the seriousness of this.  Lucas Entertainment, Far Cry, and the Hurt Locker subpoena requests are all claiming the same violation of the same copyright law that was enforced against Jammie Thomas-Rasset just last week.

When someone calls me and balks at the prospect of paying a few thousand dollars to settle a MOVIE copyright violation, I scratch my head and wonder if they realize what they are up against.

With the representation the Cashman Law Firm, PLLC provides our clients, before we suggest that our client consider paying anything, we insist that the media company demonstrate that they have evidence linking our clients to the accused infringing download.

It also goes without saying that simply informing the media companies that their accused potential defendant is represented by an attorney, the media company is put on notice to only contact the attorney and not the client.  By doing this, they are forced to adhere to the state and federal debt collection statutes, and the consumer statutes protecting the accused from any deceptive statements that might be given to an unrepresented accused internet user.  Lastly, when writing the settlement, we make sure the release that accompanies the settlement contains language that prevents the media company from using the settlement as an admission of guilt and turning around and suing the internet downloader for the SAME DOWNLOAD they just paid to settle.  It sounds unthinkable, but remember, it is the internet service provider (the ISP) who is served with a subpoena request demanding that they turn over their subscribers’ records.  Once the media companies have this information, they immediately contact the to-be defendants and solicit a settlement.  Remember, they do this without naming the defendant in the lawsuit.  The settlement does not stop the company from coming after the defendant again in a formal lawsuit (using the settlement agreement as an admission of illegal activity).

In short, as twisted as this might sound, this is the reality of what is going on.  Be careful out there.  Hire an attorney and properly defend yourself.  Play their negotiation game, and hope that they either drop the charges or offer an amicable settlement.  When they do, be reasonable.  Many would-be clients are kicking themselves for not spending $12 at the theater, or paying a Netflix membership when they had the chance.  Now they must deal with this, and it is unfortunate.

However, ALWAYS REMEMBER that the goal is to avoid the lawsuit being filed against you.  Because if a lawsuit is filed in your jurisdiction accusing a copyright violation, it is no laughing matter.

Warm regards,
Rob Cashman

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Hurt Locker Prosecution Team Suing Internet Downloaders… Again.

…I’ve been hearing through the grapevine that the Hurt Locker copyright prosecution team has begun their next wave of lawsuits.  Internet users will be shortly receiving a subpoena from their attorneys accusing them of downloading this movie.

Nothing to do yet, at this point, the prosecution only wants your information so that they can contact you to elicit a settlement to deprive you of your hard-earned cash without a trial.  Again remember — they haven’t named you in their lawsuit, nor is the settlement they are proposing a settlement to a lawsuit they have filed against you.  They are trying to circumvent that step in the legal process and skip to where you pay them to go away.  Has anyone heard another term for this sort of activity?  It starts with an e.

Through the Cashman Law Firm, PLLC, we are telling these thugs to back off and to follow the law.  We are also sending letters to various political operatives attempting to get them to change the law with regard to the way it is being applied (or misused) to charge users of committing crimes without filing suit in a court of law.  There is no such thing as an extrajudicial hearing, and the concept of “innocent until proven guilty” has not changed.

Regardless of whether you obtain an attorney to defend your copyright infringement case (and there are MANY reasons for doing so), remember that the burden of proof is on them to prove their case before you bring one iota of evidence.  At this point, some unrepresented parties are answering their questions and giving them forensic data to their computer and their hard drives to prove they are not guilty of that particular crime.  Forensic computer experts have caught the scent of this game as well and have started up’ing their prices.

Again, at this point, they have only contacted your ISP asking for your  information.  While it is to your benefit to hire an attorney so that you are not “low hanging fruit,” so to speak, remember that there is nothing to defend against and provide evidence for because YOU HAVE NOT BEEN NAMED AS A DEFENDANT AND THUS YOU HAVE NOT YET BEEN SUED.

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“What Happens Now That the ISP Subpoena Date Has Passed?” – an update for those accused of downloading illegal movies, music, or software.

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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