Feeds:
Posts
Comments

Archive for the ‘Siemens Product Lifecycle Management Software, Inc.’ Category

NOTE: Since there has been so much activity with the Siemens Product Lifecycle Management Software, Inc. software company (more out-of-the-court) and their lawsuits, I figured I would put all blog posts, etc. in one page for easy referencing. The original page can be found here.

SIEMENS PLM CASES (MAIN PAGE):

I have added this page for internet users who have become entangled in the Siemens Product Lifecycle Management Software, Inc. (a.k.a. “Siemens PLM Software”) cases.  The goal here is to keep up to date on this plaintiff, and to discuss their various cases.  Should you learn of any updates regarding one of their cases, please post it here using the following format — (e.g., “Siemens Product Lifecycle Management Software, Inc. v. John Does 1-100 (Case No. 4:17-cv-12345) filed in the U.S. District Court for the Southern District of Texas”).  Please also feel free to post new cases you find where Siemens Product Lifecycle Management Software, Inc. is listed as the plaintiff.

Siemens PLM has been known for suing John Doe Defendants across the US for the unauthorized use of their NX 7, NX 8, NX 8.5, NX 9, NX 10, NX 11, and Solid Edge ST9 Foundation software versions.  The lawsuits are all copyright infringement lawsuits filed in the Federal Courts, and each lawsuit sues for statutory damages of $150,000.

Remember to please exercise discretion when posting (e.g., do not post your real name or e-mail address), and as usual, avoid using vulgar or offensive language (both towards the plaintiff and towards other users).

CASE HISTORY OF THE SIEMENS PLM CASES:

Siemens Product Lifecycle Management Software, Inc., better known as “Siemens PLM Software” has been filing lawsuits against John Doe Defendants in federal courts across the US since 2011.

In 2011, Siemens PLM Software started their lawsuits in New York (NYSD) with two innocuous cases containing 50 John Doe Defendants which spanned NX 7 users living across the US. This led them to sue TWIVision Engineering Group, LLC in the Texas Eastern District Court (TXED) later in the year.

In 2012, they sued 50 John Doe Defendants in the Eastern District of Pennsylvania (PAED).

From 2012-early 2014, there was a lack of lawsuits from Siemens, but in 2014, they sued 100 John Doe Defendants AGAIN in New York (NYSD). Later, they again reached into Texas (TXED), but this time, they sued a number of engineering companies, including BTL Machine, Inc., and Mercury Metal Forming Technologies, LLC. They also initiated two John Doe lawsuits, Case Nos. 4:15-cv-00582, and 4:15-cv-00017.

2014-2015 Siemens continued its litigation strategy in the Texas Eastern District Courts for the remainder of 2015.

2016 was a busy year for Siemens PLM Software, as they filed large 100-Defendant cases against John Doe Defendants, this time in the Houston-based Texas Southern District Courts (TXSD). They also reached their individual lawsuits into both Ohio (OHSD) and Connecticut (CTD) where they sued Manufacturing Services International, Inc. and Demin, an individual defendant.

The cases of note currently in Texas are:
1) Siemens Product Lifecycle Management Software, Inc. v. Does 1-100 (Case No. 4:16-cv-01422), filed in May, 2016, and
2) Siemens Product Lifecycle Management Software Inc. v. Does 1-100 (Case No. 4:16-cv-03552), filed in December, 2016.

As of writing this page, most of the attention and controversy has been surrounding the December 4:16-cv-03552 case here in Texas.

SIEMENS PLM SOFTWARE STRATEGY:

In short, it appears as if the Siemens PLM Software strategy is as follows:
1) File a large 100+ Defendant lawsuit, encourage the court to approve early discovery allowing Siemens PLM to obtain the contact information for each of those 100+ John Doe Defendants.
2) Contact each of those defendants, convert accused defendants into paying customers (where the cost of the software can range from a few thousand dollars to tens of thousands of dollars).
3) Expand the lawsuit inquiry to the employer of the accused defendant engineer, and ascertain whether they have purchased volume licenses for their engineer employees.
4) Name and Serve and/or sue one or so defendants in a court outside the jurisdiction of the original court (this demonstrates that their reach is not limited to the courts in which they filed their original lawsuit). Unclear whether this is to obtain a $150,000 judgment for copyright infringement, or to convince that company to comply with their software licensing demands. I understand the goal of the lawsuits is to convert accused defendants into customers.
5) Proceed over the next three years contacting the various John Doe Defendants [even after the case is dismissed?]. File a new lawsuit against 100+ more John Doe Defendants, and repeat Steps 1-5.

BLOG POSTS:

How an attorney should handle a Siemens PLM Software, Inc. lawsuit, on 1/11/2017.
Siemens PLM NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.
Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.
Siemens Software Case IS a Bittorrent Case, on 6/20/2016.
What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX), on 1/16/2016.

LIST OF FEDERAL COURT CASES FILED (*UPDATED*):

IN THE CONNECTICUT DISTRICT COURT:
Siemens Product Lifecycle Management Software Inc. et al v. Demin (Case No. 3:16-cv-00553)

IN THE NEW YORK SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. Does 1 – 100 (Case No. 1:14-cv-01926)
Siemens Product Lifecycle Management Software, Inc. v. Does 1-50 (Case No. 1:11-cv-08469)

IN THE OHIO SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software In v. Manufacturing Services International, Inc. (Case No. 3:16-cv-00182)

IN THE PENNSYLVANIA EASTERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. Does 1-50 (Case No. 2:12-cv-06795)

IN THE TEXAS EASTERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. BTL Machine, Inc. (Case No. 4:14-cv-00506)
Siemens Product Lifecycle Management Software, Inc. v. Does (Case No. 4:15-cv-00582)
Siemens Product Lifecycle Management Software, Inc. v. Mercury Metal Forming Technologies, LLC (Case No. 4:14-cv-00002)
Siemens Product Lifecycle Management Software Inc. v. Does (Case No. 4:15-cv-00017)
Siemens Product Lifecycle Management Software Inc. v. TWIVision Engineering Group, LLC (Case No. 6:11-cv-00679)

IN THE TEXAS SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software Inc. v. Does (Case No. 4:16-cv-03552)
Siemens Product Lifecycle Management Software, Inc. v. Does 1-100 (Case No. 4:16-cv-01422)


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Read Full Post »

Because software-based copyright infringement cases are especially concerning the John Doe Defendants who are accused of using pirated software (such as what is going on right now with the Siemens PLM Software v. Does [4:16-cv-03552] case in Texas), I thought it would be beneficial to take a few moments and simplify the process. That way, when you pay an attorney, you will know exactly what the attorney will be doing.

Here are the steps your attorney (us, or anyone else) should be taking on your behalf — specifically with the Siemens Product Lifecycle Management Software Inc. v. Does 1-100 (Case No. 4:16-cv-03552) case:

STEP 1) STOP PLAINTIFF FROM CONTACTING YOU OR ANYONE ELSE ON YOUR BEHALF (WORKPLACE) ABOUT THE CLAIMS AGAINST YOU.

Once your plaintiff attorney learns that you are represented by an attorney, all communication must be with that attorney alone. Phone calls or letters to client directly once a notice of representation is provided can jeopardize that attorney’s law license.

STEP 2) RESEARCH AND DISCUSS CLAIMS COMPARING PLAINTIFF ATTORNEY’S DATA OF USE VERSUS ACTUAL USE OR NON-USE.

Siemens PLM likes to research the claims, and they take their time in getting the entire picture before discussing settlement. It is important to share truthful information with your defense attorney so that claims against you can be disputed with facts and dates. And obviously, your attorney should have the common sense to discuss the claims without admitting guilt on your behalf.

STEP 3) DISCUSS AND NEGOTIATE SETTLEMENT OPTIONS WITH PLAINTIFF ATTORNEY, WHETHER A SOFTWARE PURCHASE, A LICENSE, A SETTLEMENT FEE, OR NO SETTLEMENT (PROCEED WITH LAWSUIT).

Normally the plaintiff attorneys in a copyright infringement lawsuit (or more frequently, a bittorrent-based “copyright troll” lawsuit) will immediately approach a settlement regardless of guilt or wrongdoing. This is not the case with the Siemens PLM Software lawsuits. Rather, it appears as if they are seeking to convert those using unlicensed versions of their software into paying customers. For this reason, once the investigation is completed and claims are discussed, settlement options are discussed as well. This might include purchasing software, paying a settlement, or negotiating a license based on the limited past use of the software.

The “no settlement” option is obviously the scenario where the client did not do the download. Because Siemens PLM software is expensive (costs can range from a few thousand dollars to over ten thousand dollars), there is no reason to negotiate a settlement if the accused John Doe Defendant did not download or use the software. Rather, the alternative is to provide proof that the John Doe Defendant is not the individual Siemens PLM is looking for (it is difficult to prove a negative, but it is doable), or to help Siemens PLM come to the realization that the actual software user is the engineer next door running his business from his home.

Obviously if neither side can agree on anything, then yes, it makes sense to proceed to allow the plaintiff attorney to name and serve your client, file an answer with the court, and proceed with defending your client’s interests in the courtroom.

STEP 4) NEGOTIATE PRICE (IF BENEFICIAL, CONSIDERING CLIENT’S ABILITY TO PAY). PROVIDE DOCUMENTATION OR STATEMENT IF NECESSARY TO SUBSTANTIATE CLAIMS.

Many accused defendants installed the software for educational purposes — to ‘tinker’ with the softare, to learn the software, or to become conversant with the software. While the intention of the unlicensed use is noble (e.g., that user would later be working with a licensed version of the software at their workplace or in their business), for the moment, there was folly in their initial use of the software. This is our goal — to have these specifics be relevant and useful in a negotiation with Siemens PLM to arrave at a settlement price the client can afford.

STEP 5) NEGOTIATE TERMS OF SETTLEMENT AGREEMENT. NEGOTIATE A SOFTWARE LICENSE IF NEEDED OR REQUIRED.

These are two separate steps. The settlement agreement should be specific to the claims of copyright infringement, and they should include the nuances of Texas contract law in order to ensure the agreement is enforceable. The software license also is full of nuances and words that requires an attorney who knows what terms mean in software licenses (because certain words have meanings in the context of a software license which are contrary to the plain meaning of the word), and who is forceful enough to be willing to argue for terms or clauses which protect the client’s rights. Lastly, the software license should provide the accused John Doe Defendant the right to use the software in the way the accused defendant wants or needs to use the software in the future. It makes no sense to negotiate a limited software license to cover only past use when the defendant is an engineer and will be needing to use the software again in the future.

STEP 6) HAVE PLAINTIFF ATTORNEY SIGN AGREEMENT(S), THEN HAVE CLIENT SIGN AGREEMENT(S) AND PROCESS SETTLEMENT PAYMENT.

This is self explanatory. Siemens PLM is not bound to an agreement until they sign it (or until their attorney with authority to sign signs it on their behalf as their agent). Attorneys generally try to get the John Doe Defendant to sign first and pay their settlement fee, and then ‘maybe’ the plaintiff attorney will sign it, and ‘maybe’ the attorney will accept the payment, and ‘maybe’ the attorney will release that defendant from liability once the settlement is received. These are games a plaintiff attorney may play, and for this reason, it is advisable to have the defense attorney insist that the plaintiff attorney sign the agreement first in order to bind their client to the terms of the agreement… before their client signs the agreement or pays a penny in settlement of the claims against them.

STEP 7) FOLLOW-UP WITH PLAINTIFF TO HAVE CLIENT’S “JOHN DOE” ENTITY DISMISSED FROM CASE.

Once again, this is self explanatory, but unfortunately, it must be a step. Too often, plaintiff attorneys have the clients sign first and pay first, and then when they get around to it, they’ll sign the agreement and release that defendant from liability. However, this could take weeks or months.

The reason for this is because once their client has their money, without being contract-bound to release the defendant from the lawsuit, the John Doe Defendant who paid their settlement fee becomes a lower priority to the busy plaintiff attorney (who is juggling sometimes hundreds of defendants in multiple cases) who is more worried about the due dates for their other cases, or who is more worried about extracting settlements from other defendants. This is why it is important in STEP 6) for the plaintiff attorney to sign the agreement first.

Nevertheless, even with a signed agreement, sometimes the plaintiff attorneys need ‘reminders’ to do what they are duty-bound to do. Thus, your attorney should not close the client’s file when payment is sent, but rather, the attorney should stay on top of the plaintiff attorney until the dismissal is actually filed in the court dismissing that John Doe Defendant from liability.

In sum, copyright infringement cases are all similar, but each one has its nuances. The steps described in this article apply to any John Doe Defendant in any copyright infringement lawsuit, and for this reason, I wrote this article 1) to not only give the client an understanding of the steps which are required in representing a client prior to being named and served in a John Doe lawsuit, but more importantly, 2) to allow that client to hold their lawyer’s toes to the fire and make sure they are being represented carefully and individually.

LEVERAGE:

ONE LAST THING — I wanted to discuss LEVERAGE. A copyright infringement lawsuit is in federal court, which means that out-of-state attorneys may attempt to solicit clients to engage in settlement negotiations only. However, with a client as large as Siemens PLM, especially with the financial backing of the corporation and the millions of dollars they can pour into their lawsuits, it is probably a good idea to retain an attorney who can step foot into the courtroom if something goes wrong (and things DO go wrong). The Siemens PLM attorneys can recognize an out-of-state attorney who has little leverage to negotiate versus an in-state attorney who is willing to pull the settlement off of the table and proceed with defending the case if the plaintiff is not being cooperative in resolving the claims against the client. In short, an attorney with leverage will get a better result for his client as compared to an out-of-state attorney without leverage.

OTHER ARTICLES ON THE SIEMENS PLM SOFTWARE CASES:

Siemens PLM NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

Siemens Software Case IS a Bittorrent Case, on 6/20/2016.

What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX), on 1/16/2016.


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Read Full Post »

Siemens PLM Software has been suing John Doe Defendants in federal courts for the piracy of their NX software since it was in version 7 (so far, I have seen claims against users of NX 7, NX 8, NX 8.5?, but not yet for NX 9, NX 10, or NX 11 — all of which are available on the bittorrent networks). Most recently, I have seen lawsuits focusing in on the unlawful use of the Solid Edge ST9 Foundation software.

In June, I wrote the “What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX)” article which provided specific information surrounding the lawsuit from information acquired from the Siemens PLM lawyers themselves. However, back then, there was much still unknown, and now (almost 6 months later), I have a much better idea of how this is happening, what Siemens PLM is doing to catch those using the software illegally, whether claims of piracy are leaking over to the employers of the engineers who use the pirated software at their workplace, and how they are handling claims against those defendants, both in and out of the courtroom.

What you need to know about these lawsuits is that the Siemens PLM lawsuits still deceptively look like “copyright troll” lawsuits, but they are not. I will get into this momentarily.

*UPDATED* LIST OF FEDERAL COURT CASES FILED:

IN THE CONNECTICUT DISTRICT COURT:
Siemens Product Lifecycle Management Software Inc. et al v. Demin (Case No. 3:16-cv-00553)

IN THE NEW YORK SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. Does 1 – 100 (Case No. 1:14-cv-01926)
Siemens Product Lifecycle Management Software, Inc. v. Does 1-50 (Case No. 1:11-cv-08469)

IN THE OHIO SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software In v. Manufacturing Services International, Inc. (Case No. 3:16-cv-00182)

IN THE PENNSYLVANIA EASTERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. Does 1-50 (Case No. 2:12-cv-06795)

IN THE TEXAS EASTERN DISTRICT COURT:
Siemens Product Lifecycle Management Software, Inc. v. BTL Machine, Inc. (Case No. 4:14-cv-00506)
Siemens Product Lifecycle Management Software, Inc. v. Does (Case No. 4:15-cv-00582)
Siemens Product Lifecycle Management Software, Inc. v. Mercury Metal Forming Technologies, LLC (Case No. 4:14-cv-00002)
Siemens Product Lifecycle Management Software Inc. v. Does (Case No. 4:15-cv-00017)
Siemens Product Lifecycle Management Software Inc. v. TWIVision Engineering Group, LLC (Case No. 6:11-cv-00679)

IN THE TEXAS SOUTHERN DISTRICT COURT:
Siemens Product Lifecycle Management Software Inc. v. Does (Case No. 4:16-cv-03552)
Siemens Product Lifecycle Management Software, Inc. v. Does 1-100 (Case No. 4:16-cv-01422)

JOHN DOE DEFENDANTS ARE GETTING CAUGHT THROUGH THE *USE* OF THE SOFTWARE, NOT THROUGH THE ACQUISITION OF THE SOFTWARE.

In September of 2016, I was still piecing together how a person can get caught not through the download of pirated software via BitTorrent, but through the USE of that software (that article is still available for viewing, although the picture is more clear to us now as I describe my current understanding of it here, specifically tailored to the Siemens PLM Software-based lawsuits).

As we’ve learned, most Siemens PLM NX Software available for download on the piracy websites comes with a serial number (“SN”) and an “activator” which modifies the application to allow it to accept a random password that the SN activator generated.  (Not relevant, but still interesting to know:  The serial number + details about the computer or laptop upon which it is installed creates a “Unique ID” which can be checked with valid IDs on the server; this circumvents a computer from using a “valid” registration code for a computer for which that registration code was not licensed to.  Thus, even though the serial number activator provided the software with a valid serial number, the company servers know the software is pirated.)

This application modifier is known as a “crack,” and software which is altered to accept the serial number generated by the crack thinks locally (that is, on the laptop in which it was installed) that the software was properly acquired, purchased, and lawfully registered. Most cracks also revert the executable file used to run the file back to its original unaltered state once the software has been registered.

The problem is that even cracked software connects to the internet, for example, to access libraries in the program file which are stored on the company’s servers. In other words, for economy purposes, it would take up too much hard drive space to store every piece of a large multi-gigabyte-sized program on each person’s hard drive. Thus, companies now store core components of their software on their servers. This is generally referred to as “cloud-based software,” but what exactly is stored online with the Siemens PLM software is still unknown (and they keep this purposefully undisclosed because they track the IP addresses of the computers who run the software and access these files online).

EVEN IF THE SOFTWARE HAS BEEN REGISTERED using a “SN and an activator,” (as provided on the bittorrent websites), when the software connects to Siemens PLM’s servers to access pieces of the software to run, if the registration code (or more accurately, the Unique ID, as described above) does not match a valid paid registration from their own records, that software unbeknownst to the user is flagged as being unlicensed, and the IP address is recorded.  We now understand that the software user is not made aware of this until he is implicated as a John Doe Defendant in a copyright infringement lawsuit.

EVERY TIME that user uses the NX software, another entry of unlicensed use is recorded (date, time, etc.) and the IP address of the internet connection used when accessing the software is also logged. This is how a Siemens PLM lawsuit against a John Doe engineer can leak over to his employer receiving letters for the infringement of their software, even when the software was acquired at the accused John Doe engineer’s home.

WHO IS THE TARGET OF THESE LAWSUITS.

I mentioned above that the Siemens PLM lawsuits look deceptively like “copyright troll” lawsuits, but they are not. Rather than extorting a few thousand dollars from every John Doe Defendant regardless of guilt, Siemens is looking for a particular defendant.

Siemens PLM Software wants to find the engineer who is providing “paid” engineering services, either 1) from his own laptop in his own small business, or 2) from his employer’s place of business where unbeknownst to the employer, that employee is bringing his unlicensed software to his workplace and using that pirated software at work [noting that his work does not own or pay for a license for the software].

In other words, Siemens PLM wants to find those engineers who are using their software but who are not paying a license for the use of that software, and they want to turn that enterprising engineer into a paying customer. Moreso, Siemens PLM wants to find that company (the employer of that engineer) who is benefiting from the unlicensed use of their software, and to turn that corporate entity into a “volume license” paying customer. This is where the “big bucks” are made.

WHAT IF YOU ARE A STUDENT?

Students are a different story than paid engineers. Just as law students are fed unlimited free case lookup services and are encouraged with points and free coffee mugs for using as much of services as they can [only to be hit with a multi-thousand-dollar subscription upon graduation for what a few days ago was free (think, WestLaw, LexisNexis)], engineering students are seen as the same “cash cows” for Siemens PLM as law students are seen by the WestLaw/Nexis case lookup services. A poor engineering student today is seen by Siemens as a future subscription-based customer for the rest of his working career, and if not, that engineer’s employer will be a “volume license” customer which is even more profitable for Siemens.

If you have not yet figured this out, I have found that engineering students (and those individuals who are smart enough to figure out that the NX software has specific applications for use in conjunction with their 3D printers) find themselves in the spider web of these lawsuits more than anyone else. These individuals ‘mess around’ with the software in ways which do not provide them an income (what we call “non-revenue-producing use,” or “personal use”). Rather, they use the NX software (or more recently, the Solid Edge ST9 software) to gain professional skills knowing that if and when these students do find employment, use of the Siemens PLM software will become a necessity. So the students download it, play around with it, then get sued and call me fearing that their professional lives are over.

But no attorney at Siemens PLM — not Robert Riddle, and certainly not Steven Dietz — wants to end the financial life of a future customer. Aside from the fact that a student has no assets to seize, it is my understanding that Steven Dietz would rather turn that student into a loyal customer. For this reason, I have been able to accomplish resolutions of claims with students in a way in which is simply not available to the engineer who uses Siemens PLM’s unlicensed software for profit.

That is not to say that an engineer won’t be able to “get out” of this lawsuit — it simply takes a bit more work, perhaps paying Siemens PLM a settlement fee based on their particular circumstances (read that again carefully), and based on what software was allegedly used, what module add-ons were used or needed, whether the use was for personal or business reasons, and whether use of the software is still needed in the future.

Lastly, [since I am listing scenarios I’ve seen over the past few months,] non-engineering students who have roommates or suitemates who are engineering students also have been the recipients of the subpoena letters from their ISP (most recently, Comcast). While Siemens does not see the non-engineering student or enterprising 3D printer genius as a future customer, your engineering roommate or suitemate is still seen as such, and thus involving him or her as part of the solution can easily fix a $150,000 copyright infringement lawsuit against you.

So as you see, Siemens PLM looks like a copyright troll, but they are not. Their attorneys are often not interested in merely a settlement, but in converting the accused John Doe software user into a customer (or, as a future customer). This means that settlements are accepted where there is a future benefit to Siemens PLM, as they are not looking to use the lawsuits as a means to “cash out” or to “punish pirates.” Obviously this could change, and there have been circumstances where it is more feasible to simply defend a client by representing him or her in the federal court rather than having him agree to anything he or she did not do, but for the most part, Siemens PLM seems to be straightforward on what they seek to accomplish with these lawsuits.

OTHER ARTICLES ON THE SIEMENS PLM SOFTWARE CASES:

How an attorney should handle a Siemens PLM Software, Inc. lawsuit, on 1/11/2017.

Siemens PLM NX-based lawsuits – converting accused engineers into loyal customers, on 1/9/2017.

Software Developers are now tracking piracy through the USE of downloaded software, on 9/9/2016.

Siemens Software Case IS a Bittorrent Case, on 6/20/2016.

What to do about the Siemens Product Lifecycle Management Software Inc. v. Does case (TX), on 1/16/2016.

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Read Full Post »

DISCLAIMER: In this article I speak a lot about plaintiff attorneys cheating their own copyright holder clients, billing them “by the hour” (rather than the conventional method of accepting the copyright holder clients “on contingency”), and in some cases, wasting time to generate additional billing to their own clients.  It is my observation and opinion that this is happening, but short of a lawsuit like we saw with the Dallas Buyers Club copyright holders against their Voltage Pictures licensee, it is difficult to prove that such things are taking place.  However, “honor or dishonor among thieves” is not the topic or the point of the article — the point of the article is that plaintiffs are dragging defendants further into the federal lawsuits by naming and serving them, and it is my opinion that it is still possible to obtain a settlement, even after a client has admitted guilt in an answer to a deposition question.

It is a sad day when trolls force those they’ve accused to become legal experts and to stick their toes into the federal courts to defend themselves. In the attached article, DTD is correct that lawyers (myself included) can get expensive, and defending a case (e.g., answering a complaint, showing up and defending a deposition, answering the various requests for information that are required in a federal lawsuit, etc.) is often more expensive than simply paying a copyright troll plaintiff a few bucks to make them go away.

Unfortunately (at least in my Texas Southern District federal court), the copyright-troll attorneys appear to be billing their copyright-holder clients BY THE HOUR (which differs from the old model of a plaintiff attorney agreeing to take a case on contingency and only sharing in the settlement profits believing [the lie] that “they’ll make millions going after John Doe Defendants”), so these ‘hardened’ plaintiff attorneys seem to be running-up the bill by dragging the defendants through the mud — naming them, serving them, filing documents, and wasting everyone’s time.

In short, while I agree that IN NORMAL CIRCUMSTANCES doing what DTD suggested (filing an answer with the court and fighting your case) would normally not be something one would ever dare do [at least without a lawyer holding his/her hand, or sitting in and defending a deposition], in today’s evolution of the bittorrent cases, filing an answer and at least being willing to endure the legal process until a settlement is offered (and a settlement is usually offered eventually) has become a necessity.

WHY BEING FORCED TO ANSWER QUESTIONS IN A DEPOSITION MIGHT LEAD TO A SETTLEMENT:

Let’s take a quick example.  In the typical scenario, the goal in representing a client who wants to settle is to contact the plaintiff attorney on the client’s behalf and negotiate a settlement.  For a plaintiff attorney who is billing his copyright troll client by the hour (as is what appears to be happening in the Texas bittorrent-based copyright infringement cases), agreeing to a settlement is too easy of an outcome because the plaintiff attorney does not make the kind of money he could make “dragging the defendant through the mud while charging his client hourly to do so.”  (Remember, as we saw with the Voltage / Dallas Buyers Club cases, a crooked attorney steals not only from his victim [the accused defendant], but also from his client (as we saw in the Voltage / Dallas Buyers Club cases where Voltage was sued for failing to pay Dallas Buyers Club monies earned and owed to it through its copyright enforcement activities)).

More likely than not, the plaintiff attorney’s client (the actual copyright holder seeking to “monetize” or “enforce” the rights given to him via his copyright) is not aware that the attorney is over-billing (e.g., engaging in such “mud-dragging”, “revenue-producing” activities often cannot be proven, and thus it continues until the copyright holder gets tired of paying his attorney’s bill).  Thus, free of scrutiny from his client, the plaintiff attorney needlessly exacerbates the situation by demanding from the defendant something unreasonable (e.g., that unless the defendant is willing to agree to sign an explicit admission of guilt prior to being made aware of the kind or amount of settlement he will be offered, there will be no settlement).  [FYI, this is something no sane person would agree to.]  As a result, the defendant refuses to admit guilt, he gets named and served, and he is forced to spend thousands of dollars more to defend himself.  Why?  Because his plaintiff attorney figured out a way to milk not only him (the defendant), but his copyright-holder client as well.

There are a number of steps that happen after being named and served, but the point is that eventually, the plaintiff attorney is going to schedule a deposition (where the defendant will need to answer questions “under oath,”) and the defendant is going to tell the truth about what happened.  If the download indeed happened, this will come out in the deposition.

However, this “nightmare” fear that the defendant will “admit guilt” will only cause one result — the plaintiff will have proof that at trial, based on the information elicited from the defendant in the deposition, that defendant could be held liable for the $150,000 in statutory damages.  But then… how many of these defendants have $150K sitting around in their mattresses or in their bank accounts?  And if they do, don’t you think that instead of paying the judgment, they would rather hire a bankruptcy lawyer and file for a bankruptcy to discharge the copyright infringement judgment in bankruptcy?

In short, the worst-case-scenario in a deposition is that the defendant admits guilt, which is often what will likely happen if the defendant is the downloader of the copyrighted film.  But then after all this excitement, the plaintiff attorney and the copyright holder still want to get paid (and they know they are likely not going to collect anything by obtaining a $150K judgment against the defendant).  This is why the plaintiff attorney will likely initiate settlement talks with the defendant, taking his financial circumstances into consideration.

This is not to say that settling a case right away (and before being named and served) is no longer an option — there are multiple copyright holders filing in the Texas and New York courts, including Criminal Productions Inc., September Productions Inc., CELL Film Holdings LLC, the infamous Malibu Media LLC, Fathers & Daughters Nevada LLC, Dallas Buyers Club LLC, and the related non-bittorrent copyright holders which include DISH Network L.L.C. (not so much anymore) and Siemens Product Lifecycle Management Software, Inc. (a software company), each of whom have their priorities and specific instructions on how they would like their plaintiff attorneys to handle the lawsuits on their behalf.

But, what I do want you to glean from this commentary (really, it’s an article, but I did re-blog DTD’s article and I need to stick to that topic), is that plaintiff attorneys ARE naming and serving defendants, and it should be expected that this could happen — and if a defendant is named and served, they could still negotiate a settlement.  But be aware that in order to get to that point, the plaintiff attorney (who might be motivated by maximizing his billing to his own client [think, stealing from you AND stealing from his own client]) might drag you through a deposition and a number of steps before he accepts a settlement from you.

LAST NOTE: BILLING IN “BLOCKS.”

I agree that lawyers are expensive simply because we charge for the time it takes to complete each step of the legal process. However, many attorneys (myself included) already know how much time each step will take, so “flat fee” billing is an option (understanding that billing would happen based on timelines of where you are in the lawsuit).

Thus, it might make sense to hire an attorney who charges you a flat fee for a certain “block” or piece of the lawsuit (e.g.,

BLOCK 1: FROM GETTING NOTICE OF THE LAWSUIT THROUGH BEING NAMED AND SERVED [WITH THE INTENT OF NEGOTIATING A SETTLEMENT PRIOR TO BEING NAMED AND SERVED].

BLOCK 2: FROM BEING NAMED AND SERVED (E.G., FILING AN ANSWER WITH THE COURT, PROVIDING ANY NEEDED DISCLOSURES, FILING ANY PROTECTIVE ORDERS, SETTING DISCOVERY TIMELINES).

BLOCK 3: FILING INTERROGATORIES AND REQUESTS FOR PRODUCTION, AND ANSWERING INTERROGATORIES AND/OR REQUESTS FOR PRODUCTION.

BLOCK 4: PREPARING FOR AND DEFENDING A DEPOSITION.

BLOCK 5: SETTLEMENT NEGOTIATIONS AND RELEASE OF LIABILITY.  Or, BLOCK 5A: FILING A SUMMARY JUDGMENT MOTION TO RELEASE DEFENDANT FROM LIABILITY,

…AND SO ON, BLOCK 6: …TRIAL (my opinion, unlikely, unless the copyright holder figured out a way to prevent the deep-pocket defendant from filing for bankruptcy).

I have laid these out as a template, as each case and each copyright holder often needs to be handled differently.  Typically, clients were able to negotiate a settlement and be released from liability with just BLOCK 1.  However, as we discussed above, we are seeing more-and-more that plaintiff attorneys are taking defendants deeper into the lawsuits (“deeper down the rabbit hole, so to speak”), specifically past the “naming and serving” stage, past the answer stage, and into the discovery stages before considering or accepting settlements.  I am not one to advocate doing this on your own, and if you could afford an attorney (me, or anyone else), that is the safest way to go.  But if hiring me or another attorney is not an option, fighting this on your own (called, “pro se”) is the best alternative, and DTD’s article gives you a good first and necessary step in getting the ball rolling.

As I said before, good article, DTD!

Caveat – I’m not an attorney and I’m not practicing law. This is simply my thoughts and views based on what I see concerning BitTorrent (BT) Copyright Infringement Trolls. If you decide you need legal advice, please hire a knowledgeable attorney. IF you truly cannot afford an attorney, here at least is one possible option. […]

via Answering A BT Copyright Troll Summons/Complaint — DieTrollDie


CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

Read Full Post »