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Archive for February, 2011

Congratulations to our clients and to all defendants in the “CP Productions, Inc. v. Does 1-300” case (1:10-cv-06255), dismissed in the US District Court for the Northern District of Illinois. While at first glance this case appears to be a no-name media company attempting to enforce their copyrights using the mass tort copyright infringement “John Doe” model, there *is* real significance to this case.

This is one of the first cases in the US District Court for the Northern District of Illinois to have been dismissed. It was dismissed by Judge Milton I. Shadur, a Senior United States District Judge. More importantly, this is John Steele’s (of the Steele Law Firm LLC — now Steele Hansmeier, LLC) home court where a majority of his other cases have been filed. Have you heard of any of his other cases filed there (just to name a few)?

Millenium TGA, Inc. v. Does 1-100 (1:10-cv-05603)
Lightspeed Media Corporation v. Does 1-100 (1:10-cv-05604)
Hard Drive Productions, Inc. v. Does 1-1000 (1:10-cv-05606)
First Time Videos LLC v. Does 1-500 (1:10-cv-06254)
Future Blue, Inc. v. Does 1 – 300 (1:10-cv-06256)
MGCIP, LLC v. Does 1-316 (1:10-cv-06677)
MCGIP, LLC v. Does 1-1,164 (1:10-cv-07675) [no misspelling there]
Achte/Neunte Boll Kino Beteiligungs GMBH & Co KG v. Novello (1:11-cv-00898)
Achte/Neunte Boll Kino Beteiligungs GMBH & Co KG v. Famula (1:11-cv-00903)

As you can see, a lot is riding on these cases, and one dismissal creates a ripple effect which will likely affect the others. This is what happened in Evan Stone’s Larry Flynt Productions (LFP Internet Group, LLC) cases and related cases which were all dismissed in the US District Court for the Northern District of Texas all at once. Here, the judge’s order (which you can either find online or you can e-mail me) was quite explicit in his reasons for dismissing the case. No doubt the other judges for the cases I listed above will take notice of this dismissal.

For more information on the case, Ars Technica website had a nice write-up on it in their “Random defendant outlawyers P2P attorney, gets lawsuit tossed” article. The 99 comments (as of the posting of this article) are also very telling and informative.

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Considering the recent articles online leaked by the attorneys of the Hurt Locker and the Far Cry cases in that they plan on filing against dismissed defendants in their home states, I have been asked whether my opinion regarding the eventual outcome of the cases still in existence has been altered by what is, in my opinion, a public relations media blitz in response to the fall of the Larry Flynt Productions (LFP Internet Group, LLC) lawsuits and similar related suits in the Texas and West Virginia courts.

In short, the mass John Doe copyright download cases have been falling like dominoes — one after the other — and there are too many of them to note. However, as a reaction to these failed cases, there have been a number of “scare” articles leaked to the internet claiming outright lies such as “we were successful in obtaining hundred-thousand dollar judgments against multiple torrent users last year.” This is simply not true. I check the records and filings of many (if not most) of the copyright lawsuits on a regular basis. I have seen many cases get dismissed; I have seen many cases get severed leaving only one John Doe defendant — but I have never seen a judgment against an individual John Doe torrent downloader from these lawsuits.

Of course I must point out that there are a few example cases made by the Recording Industry Association of America (“RIAA”) which I wrote about a few months ago where one woman was handed a $1.5 million dollar judgment for seeding (sharing) over twenty .mp3 music files.  In addition, there were the Napster, Grokster, and related cases which lost a few years back.  However, as for media companies getting judgments against individual John Doe defendants in these mass copyright infringement lawsuits? I have not seen even one.

However, as per the plaintiff attorneys in these copyright cases, it has always been their position that they intend to go after individuals in their home states. However, if you read my most recent article (towards the bottom), you will see the obstacles they face in going after every one of the individuals dismissed in their previous lawsuits. I have quoted the relevant portion below.

“Now what does this mean for our firm’s clients? In short, all defendants were dismissed and severed. What this means is that if the plaintiff attorneys wish to continue the lawsuit, they will have to file against each of the six thousand defendants individually. They will need to draft complaints specific to each defendant alleging infringement of their client’s copyrights — each one is extremely time consuming. They will have to get admitted (pro hac vice) in the local court in which each defendant lives, or they will have to find local counsel in each state each defendant lives and they will have to hire that local counsel to file the paperwork on their behalf. They will have to learn and follow the local court rules, they will have to pay the filing fees for each defendant (~$350) they sue, and they will have to properly serve each defendant.

Then us attorneys will begin defending the cases, and we will begin conducting discovery and making them attend depositions, answer interrogatories, and prove their case. I would think this would be difficult for them to do with just a few defendants. I can imagine this would be nearly impossible to do with 6,000+ defendants.

But, I’m sure if asked, they will probably post some news article expressing their determination to go after each and every defendant, and I wish them well.” (Emphasis added.)

As a side note the defendants in the above quoted article were not severed, they were outright dismissed. This has ramifications for the plaintiff attorneys and it will affect how they are able to proceed in suing defendants individually.

Lastly, regarding the blitz of articles many of you have been referring to (on arstechnica, on digitalmediawire, etc. — example here) — if you read the news articles carefully, there is no indication that a new wave of individual lawsuits are being filed.  (Obviously taking note of a few “test the water” cases, one example described here).  These articles, along with their source article on CNET News state that the owner of Dunlap, Grubb & Weaver is “driving to the court right now…” Very exciting and newsworthy, but no proof of a new and pervasive business model of filing against individual defendants.

I have no doubt that in the coming months, we will transition from fighting procedure (no jurisdiction, improper joinder) to fighting actual evidentiary issues, but we are FAR from being there yet. John Steele is still messing around with trying to move forward with a reverse class action suit (article here), and if he succeeds, I’m sure the other law firms and media companies will copy his methodology and will first try their hand at John Steele’s new business model before scaling down what was (and for the time being, still is) their profitable mass copyright lawsuit business model to going after individual defendants. This current business model of joining hundreds, if not thousands of internet downloaders into one lawsuit is failing in the courts because of inherent procedural defects, but the model itself is not yet a failure. From what I hear, there is a huge settlement rate (e.g., I heard that 90% of defendants get scared into settling before even talking to a lawyer), and so for as long as they can continue to scare defendants into settling, their business model will remain a success.

I cannot see, however, the profitability of going after an individual for any other reason than to attempt to secure a few example cases in their favor. I have no doubt that even if they were successful in suing individual downloaders (an outcome which I doubt would be the case if the defendants hired competent attorneys to fight their case rather than going pro se), the media companies would never collect a penny from the defendants because in all likelihood, any defendant hit with a $150,000 judgment will immediately be hiring a taxi to drive them to the nearest bankruptcy court, followed by dinner at an expensive restaurant.

In short, beware of what you read online. Check your information from all sites against the simple facts, filings, and pleadings of the case which are publicly available to those who want to do their homework.

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I would like to personally congratulate the 6,374+ John Doe Defendants (3,120 + 635 + 2,619) who have been dismissed from the LFP Internet Group, LLC (Larry Flynt Productions) cases. This is a huge victory for our clients and internet users in general. What makes this case significant is not the daunting number of defendants, but that this case provides great case law for future cases.

In short, since the West Virginia Cases crumbled in December of 2010, judges across the country have taken notice that there are more issues in these cases other than plaintiffs merely being sued in the wrong jurisdiction. There and here — like dominoes tipping dominoes — the cases were dismissed and severed based on joinder issues. In short, the joinder issue can be summarized by stating that it is improper for a plaintiff attorney to sue many John Doe defendants who, when downloading — although they were all committing the same copyright infringement crimes at the same time — were not engaged in one concerted effort.

In the words of Hon. Royal Furgeson, Senior United States District Judge for the Northern District of Texas, the defendants may have shared files via BitTorrent, but “there are no allegations… that the Defendants are in any way related to each other, or that they acted in concert or as a group in their allegedly offending actions.” The plaintiff only claimed that “each Defendant… has used, and continues to use, BitTorrent software to reproduce and/or distribute Plaintiff’s motion picture to hundreds of other BitTorrent users.” Because the plaintiff’s infringement claims against each Defendant is based on the individual acts of each Defendant rather than “arising out of the same transaction, occurrence, or series of transactions or occurrences,” joining them together in one lawsuit is improper.

In short, the rule we get from this monster case is an affirmation of the law from the West Virginia cases, namely, “merely committing the same type of violation in the same way does not link defendants together for purposes of joinder.” West Coast Prods., Inc. v. Does 1-535, No. 3:10-CV-94 (N.D. W. Va. Dec. 16, 2010). This is good law, and I would not be surprised if the dominoes continue to fall, knocking down one case after another.

Now what does this mean for our firm’s clients? In short, all defendants were dismissed and severed. What this means is that if the plaintiff attorneys wish to continue the lawsuit, they will have to file against each of the six thousand defendants individually. They will need to draft complaints specific to each defendant alleging infringement of their client’s copyrights — each one is extremely time consuming. They will have to get admitted (pro hac vice) in the local court in which each defendant lives, or they will have to find local counsel in each state each defendant lives and they will have to hire that local counsel to file the paperwork on their behalf. They will have to learn and follow the local court rules, they will have to pay the filing fees for each defendant (~$350) they sue, and they will have to properly serve each defendant. Then us attorneys will begin defending the cases, and we will begin conducting discovery and making them attend depositions, answer interrogatories, and prove their case. I would think this would be difficult for them to do with just a few defendants. I can imagine this would be nearly impossible to do with 6,000+ defendants. But, I’m sure if asked, they will probably post some news article expressing their determination to go after each and every defendant, and I wish them well.

As a funny closing note, I found it interesting that even in this case, the many motions to quash and motions to dismiss based on lack of jurisdiction, etc., were NOT APPROVED. They were denied as moot.

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QUESTION:
At what point is an accused torrent user ‘named’ in a lawsuit? Is it once the ISP turns over his information to the attorneys? What do I do if I am named in such a lawsuit? Can your firm still represent me if I am named in a lawsuit? What if I am named in a jurisdiction in which you are not licensed?

ANSWER:
All of the proceedings that have been taking place with these copyright infringement cases have been in the pretrial stages while the defendant is still a John Doe represented merely by his accused IP address. Even after the internet service provider hands over the defendant’s identifying information, he or she remains a John Doe Defendant until the plaintiff attorney decides whether to name the defendant or dismiss him or her. If he names the defendant, the named defendant ceases to be a John Doe and must immediately file any motions (e.g., motions to quash if still relevant, motions to dismiss, etc.). Upon being named, the plaintiff attorney must serve defendant with the complaint filed against him, and the complaint must conform to both the Federal Rules of Civil Procedure and the court’s local rules. The defendant is advised if he has not already done so to hire local counsel (or if he is already represented by an attorney, to have his attorney hire local counsel to file motions on his behalf) to defend the case. In short, upon being named, the defendant’s attorney (or local counsel) must file an answer to the complaint with the court, send a copy to the plaintiff, and must start evidentiary proceedings (e.g., discovery) if he is to properly defend his client.

Our firm has been gearing up for full-fledged copyright infringement lawsuits since September of last year, but so far the cases have not moved past the John Doe stages of the lawsuits. It just seems to me as if the plaintiffs are nervous that if they start suing, then we will start defending the cases diligently and we will start creating bad case law for them (which is exactly what they have been trying to avoid). If they move the case down this road of naming defendants and we start winning on the merits of the case rather than having them dismissed based on procedural defects (as has been the case in most of the dismissals to date), we will shut down their operations and will make it almost impossible for them to continue their cash machine of suing John Doe Defendants without naming the underlying defendants and scaring them into settling, only to dismiss and repeat with a whole new set of defendants.

Warm regards,
Rob Cashman, Owner
Cashman Law Firm, PLLC

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133 hits on my website in just the past few hours… Foreclosures in Texas are spiking in February 2011.

Defending a foreclosure in Texas is a complicated and time consuming matter, but having an attorney who is intimately familiar with the mortgage industry and who has protected foreclosure clients before can really ease the process. When it comes to having your attorney go to court, make sure they KNOW THE ORDER in which they need to see the clerk and how to get in front of the judge to issue the temporary restraining order, and how and when to serve the trustee or the opposing counsel.

There is a lot of background work that the attorney must do before this happens. The attorney must gather all facts, write up all the paperwork (this alone takes a number of hours), have the client sign and notarize an affidavit, if necessary, all of which will be brought to the judge and filed with the clerk in the order that is needed to stop the impending foreclosure sale.

Before even writing up the paperwork, the attorney needs time to review your loan documents, including any default letters or correspondences regarding transfers of your mortgage from one mortgage servicer to another. Knowing what to provide is simple — upon signing the Cashman Law Firm, PLLC‘s fee agreement, we will provide you a fairly standard and easy-to-read form which you will fill out. Reading your form will provide the information we will need to know which documents to ask you for.

All in all, if the attorney is not careful, this can end up costing you lots of money in legal fees. The process itself is not cheap because it is time consuming for the simple reason that the research must be done efficiently to identify which of the many federal or state statutes or procedures have been violated (very frequently there are multiple causes of action because the mortgage servicer or lender routinely violates a number of statutes), and there are multiple sets of pleadings that must be drafted by the attorney which are very specifically tailored to the facts of your case. In addition, once all the research is done, the attorney must then run to the court, see the clerk, fill out the forms to file the paperwork, wait to see the judge as fast as possible to argue the client’s case and convince him or her to sign a temporary restraining order (“TRO”) (because most cases have severe flaws, the judges typically do sign most of the temporary restraining order applications). Once the TRO is signed, the attorney must then run back to the clerk, file the order, wait for a citation to be drafted, and then must get a process server or some other party to serve the opposing counsel or trustee giving them notice that they are not to proceed with the foreclosure process.

In summary, this is a complicated process, and most attorneys who do foreclosures in Texas do them for the banks. Early on when I came to Texas and I inquired why more attorneys were not doing this, I was told, “Texas isn’t called the ‘lender’s bar’ for nothin’.” Foreclosure attorneys are prevalent and numerous in Florida and other states where the laws are very friendly to borrowers and it is quick and easy for any lawyer to practice this field of law. Here in Texas, as I have written in previous postings, the law not friendly to homeowners, and it provides a “one-two punch” depriving the property owners of their homes.

Everything I have written, however, should not scare you. The Cashman Law Firm‘s goal is 1) to review your paperwork as quickly as possible to identify issues and flaws with regard to your loan, regardless of whether it is a mortgages, a home equity loan, a refinance loan, or a home improvement loan (the rules are different for each, but the issues are generally the same), 2) draft the paperwork and have the client sign and notarize their affidavit, 3) run to the court, initiate a lawsuit, and get the judge to sign a temporary restraining order, and 4) serve the other party the judge’s order which likely will tell them to cease and desist moving forward on the foreclosure until the underlying issues are resolved by the court.

Please let me know if you have any questions about the foreclosure process in Texas.

For Clients Outside Houston: While I will travel to areas outside Houston (e.g., Galvaston, Austin, Dallas, etc.), very often I will prefer to hire local counsel to take care of matters which are too far away. For these cases, I would tell the client during our initial consultation that I would do all the work and I would write up the paperwork, but to minimize the costs to the client, I’d have a local attorney drive over to the court to make the filings on their behalf.

For Clients in New York: Even though I am licensed in New York and Texas, my office is in Houston, Texas. As such, as I stated above, I would do all the work, but when it came to filing the documents in court, I would hire local counsel to make the filings for me.

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