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Posts Tagged ‘DMCA Scare Letters’

We already know that it is the business model of CEG-TEK and other copyright monetization companies is to develop relationships with the internet service providers (“ISPs”), and to have them forward copyright infringement / DMCA notices to their subscribers.

I have mentioned this already with regard to the relationships CEG-TEK has with Charter, CenturyLink, and Suddenlink, and as we know, COX Communications, Inc. signed on with CEG-TEK in December of 2015, and has been sending CEG-TEK’s DMCA violation notices to their users.  What we did not notice until now is that Cox Communications has become CEG-TEK’s “golden goose.”

WHY COX IS CEG-TEK’s “GOLDEN GOOSE”:

Why Cox? Because Cox provides its users the same IP address each day. This “one subscriber, one static IP address” trend provides copyright holders and government officials an “ID” of sorts which allows them to identify a particular IP address, watch the activities of that IP address over time as it interacts with different websites (e.g., to see what links that internet user clicks on, to learn where they shop online, what accounts they use, what items they purchase, and what bittorrent downloads they participate in).  Then, when they have developed enough of a profile on that user to convict, they then trace that IP address back to a certain Cox Communications account for prosecution, or in our case, extortion.

For CEG-TEK, they are focusing their efforts on Cox because by doing so, they do not need to obtain from the ISP a past list of IP addresses assigned to that user, and it is very easy for CEG-TEK to go back in time and check their own logs of the past bittorrent swarms to see whether that particular subscriber / IP address participated in any other downloads of their other clients. Some have suggested to me that CEG-TEK can do a search to see what other bittorrent downloads the accused Cox subscriber has participated in. In short, Cox’s “one subscriber, one static IP address” is nothing short of a violation of their subscriber’s privacy, and it is only a matter of time before someone’s IP address gets “followed” and someone gets hurt because Cox is not obscuring the identity of their subscribers.

BRIGHT HOUSE NETWORK IS NOW WORKING WITH CEG-TEK:

Other than Cox, I have recently learned that Bright House Networks (brighthouse.com) is now working with CEG-TEK. I do not yet know in what capacity they are working with CEG-TEK, or in what kind of relationship, but it appears as if they are a new ISP “recruit” in CEG-TEK’s “war” against piracy.

NEW CHARTER COMMUNICATIONS POLICIES AS TO HOW THEY FORWARD DMCA NOTIFICATIONS (THE GOOD AND THE BAD):

For the thousands of you who are Charter subscribers, Charter has recently changed the way they forward the DMCA notices, and this can only be good for subscribers. Instead of forwarding the notices in an e-mail, they are now asking subscribers to “log in” to their website, where only then can then view and copy for themselves a copy of CEG-TEK’s letters.

This is both very good, and bad. On the good side, any “hoops” an ISP makes a subscriber jump through to see the claim(s) against him might annoy the subscriber, but it no doubt infuriates the copyright holders and “monetization” companies (like CEG-TEK) that rely on them seeing their DMCA notices to provide their copyright holder clients their dirty money (I could have said “ill-gotten gains,” but emotionally, calling it “dirty money” seemed to fit better).

THE PROBLEM OF “LOST” DMCA NOTICES:

However, BUYER BEWARE! I have received many calls about people who have physically LOST their DMCA notice because they did not copy it down when they viewed it. And when they called me about it panicked, because I couldn’t see the claims because they did not know who was claiming copyright infringement against them, I couldn’t tell them whether the copyright holder was a “copyright troll” or not, or whether they are suing downloaders in the federal courts. So please, as soon as you access the DMCA violation notices sent to you, either download a copy of it for yourself, or copy-and-paste it into a text file.

GOOGLE FIBER IS A DISORGANIZED ISP WHICH HAS ALSO LOST DMCA NOTICES:

Google Fiber subscribers also — Google Fiber seems to not be organized as to keeping track of the DMCA notices that they are forwarding to their subscribers. So when an internet user inadvertently deletes that notice, it is gone forever. Neither I, nor anyone else can help you fight or settle (or even advise you as to your options) if you accidentally deleted the notice. I suspect that if you are reading this article, it may already be too late.

CANADA — NEW CANADIAN ISP RECRUITS:

Okay, last piece of news and then I need to get back to work. As we know, CEG-TEK has been sending letters for months to Canadians and forcing the ISPs to send these letters to their subscribers under what is known as “notice and notice.” I have written about the problem and the solutions here in my “CEG-TEK: What are your financial risks and considerations of ignoring, settling, or being sued for copyright infringement if you live in Canada or Australia?” article. The news is that just as CEG-TEK is growing their business by signing on new ISPs in the US, this is also true in Canada.

The new Canadian ISPs now working with CEG-TEK appear to be Videotron (a.k.a., Vidéotron), Bell Aliant (www.bellaliant.ca), and Eastlink (www.eastlink.ca) — this will also affect their FibreOP users under the ISP names NorthernTel, DMTS, Telebec (Télébec), and Cablevision. If anyone receives notices from these internet providers, I would like to see them, as I hear that CEG-TEK is not following the notice rules.

As for the older ISP names — Bell Canada, Rogers Cable, Shaw Communications (sjrb.ca), ACN Canada, Electronic Box Inc., TELUS Communications, Start Communications, and TekSavvy, yes, these are still in play. The only one of these that has my respect thus far is TekSavvy which has tried to protect their users by fighting back, but even so, they are still sending CEG-TEK’s DMCA violation / copyright infringement letters, so my respect is limited.


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.

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Obviously I am not privy to the contracts signed between CEG-TEK and the internet service providers (“ISPs”).

There are three possible relationships between a copyright enforcement company and the ISP through which they send DMCA letters informing subscribers that unless they settle the claims against them for downloads that allegedly occurred, they might be implicated in a copyright infringement lawsuit.

1) A RELATIONSHIP OF FORCE AND THREATS AGAINST THE ISP (where CEG-TEK threatens, and the ISP complies),

2) A RELATIONSHIP OF PROFIT FOR BOTH SIDES (where CEG-TEK pays, and the ISP cooperates), and

3) A RELATIONSHIP OF PURE MOTIVE (both CEG-TEK and the ISP hold hands and cooperate, to “fight piracy”).

SCENARIO 1) “A RELATIONSHIP OF FORCE AND THREATS AGAINST THE ISP” (where CEG-TEK threatens, and the ISP complies)

In the first scenario, a company or set of attorneys representing the copyright holders contacts the ISP and informs them that they might be in violation and subject to various lawsuits, fines, and penalties for not complying with the U.S. Digital Millennium Copyright Act (“DMCA”), and other statutes (in Canada, the ISPs are literally required to pass on claims to their customers, and this is referred to as “notice and notice”). If the ISPs do not comply, they could be sued for millions of dollars for encouraging piracy on their networks (I am speaking loosely in the vernacular).

ISPs across the US would be included in this first scenario, which explains how many of the bigger ones such as Comcast [who I understood were originally NOT working with CEG-TEK, because doing so would violate how they are supposed to act by being part of the “Six Strikes” system] started sending out abridged CEG-TEK infringement notices a few months ago, even to first time offenders.  Another such example of ISPs who “take steps” to stop infringement is Charter, which has been known to temporarily suspend their users who are accused of copyright infringement, but only with a pop-up notice that they need to click on to acknowledge the claim of copyright infringement against them before their internet service is resumed, unhindered.

NOTE: Comcast also has a strong profit motive as demonstrated in Scenario 2 (below), as does Charter, who has been known to be working with CEG-TEK since the beginning of their operation.  We believe the relationship between Charter and CEG-TEK is one of “for mutual profit” (Scenario 2) because CEG-TEK has obtained information about accused downloaders that they could only obtain with the help of the ISP.  Also, I understand that over the years, there have been periods of “tension,” (as I called them) where Charter has held back the sending of the CEG-TEK DMCA infringement notices for sometimes weeks at a time, only to send them all at once (my joke at the time was, “I guess they were waiting for their payment.”)  All jokes aside, the point here is to note both the Comcast example and the Charter example to show the actions an ISP will take to make it look as if they are “taking steps” to fight piracy.

In each of these scenarios, the ISP does the absolute minimum to comply with the claims against their customers, but what you don’t see is the “wink and a nod” from the ISP that they are likely not going to shut your account down or lose you as a customer over this (in other words, your activity violates the ISP’s terms of service “TOS” or “PUA”, but I have not been hearing of anyone’s account being shut down).

UNRELATED, BUT STILL VERY IMPORTANT: I have even heard that ISP customer service representatives actively tell their subscribers [in ignorance of the law] to just delete the infringing content and to ignore the notices.

FYI, look up “spoliation” of evidence, where the victories of the copyright holders in the US against downloaders happen where the copyright holder can prove that the accused defendant wiped his hard drive or deleted the infringing content after being notified by the copyright holder that there was a claim of copyright infringement against the subscriber. Thus, take what the ISP customer service representative says with a grain of salt because even though they might not care that the download happened on their network, there is still the law and the claims against you, and your ISP’s customer service rep is in no position to be giving you legal advice. Better to deal with or resolve the CEG-TEK claim against you first (if you were going to settle) before wiping the hard drive in fear of having other claims of copyright infringement or lawsuits filed against you (e.g., by other copyright holders such as Malibu Media, LLC, etc.) in the near future.

NOTE: Your relationship with your ISP has ABSOLUTELY NOTHING TO DO with your relationship with the copyright holder (or CEG-TEK) or the claims against you, since the copyright holder(s) still have one or more claims of copyright infringement against you.

SCENARIO 2) “A RELATIONSHIP OF PROFIT FOR BOTH SIDES” (where CEG-TEK pays, and the ISP cooperates)

In this scenario, the understanding is that CEG-TEK is actively paying the ISP for providing their DMCA infringement notices to their subscribers. While I did not initially believe this was happening in Canada (although I did have my suspicions), as of this morning, I now believe that Shaw Communications Inc. (a.k.a. Shaw Cablesystems G.P., or “sjrb.ca”) is working with CEG-TEK in a “for profit” relationship. I obviously cannot prove this, but from what I understand is about to happen with their subscribers [who will shortly be receiving multiple letters of infringement sent to them at the same time], this type of “delay, then dump a bunch of infringement claims” experience usually happens in a “for profit” relationship when the ISP is being compensated for the time they spend complying with the copyright infringement requests, and the payment is not immediately made.

Two examples demonstrating the “for profit” motive of various ISPs in the U.S. with facts (in these two cases, the “for profit” motive was forced upon CEG-TEK to their frustration) can be seen in the past behaviors of both Comcast and AT&T. A few years back, to handle the increasing number of subpoena requests (at the time, as a result of John Steele / Prenda Law Inc. lawsuits and the increasing number of bittorrent lawsuits being filed across the U.S.), Comcast opened up a “subpoena compliance” department in Morristown, NJ and staffed [at the time] twelve new hires just to handle the new subpoena demands from the lawsuits. In the lawsuit filings, when the copyright holders and their attorneys learned that Comcast was trying to profit off of the bittorrent lawsuits, they complained to the judges that Comcast was stalling on the subpoenas (Comcast was, at the time, under a duty to comply with the many subpoenas that were being requested of them).  It came out that Comcast was asking for something like $25-$50 per IP address lookup, when they were supposed to be complying with the subpoena for free.  Comcast prevailed in getting their IP address lookup fees, which I understand they continue to charge, even though other ISPs still do this for free.

Similarly, for those who know anything about Ira Siegel — the name that shows up on the bottom of every single CEG-TEK DMCA notice — there was a point where Ira absolutely refused to work with AT&T because AT&T’s subpoena department would charge $200 per subpoena request or IP address lookup, something at the time I heard that he found infuriating. Thus, you’ll notice that even today, you’ll never find a recipient of a CEG-TEK violation notice being a subscriber to AT&T, but as you can see, there *is* a profit motive of the ISPs to benefit financially from the growing influx of copyright infringement claims against their subscribers.

NOTE: I understand that the relationship between Charter, Centurylink, Suddenlink, Cox, sometimes Comcast, [and now most recently in Canada, Shaw Communications] fall under this scenario. The reason I am of this understanding is because of the advanced information CEG-TEK is able to identify about that subscriber, sometimes including the subscriber’s name (I have my own understanding as to how they get this from the geolocation), the geolocation itself of where the downloads occurred, along with other “past downloads” that allegedly happened weeks or months in the past at that same location, or by that same subscriber (based on a list of old “IP addresses” provided to CEG-TEK so they they can correlate that list against their own bittorrent records).

SCENARIO 3) “A RELATIONSHIP OF PURE MOTIVE” (both CEG-TEK and the ISP hold hands and cooperate, to “fight piracy”)

This is the “kum baya” view of piracy, where CEG-TEK approaches the ISP and tells them that they want to fight piracy. They show statistics of how when other ISPs “joined forces” with them and started sending out the DMCA violation settlement letters, piracy dropped significantly on that ISP’s network.

The ISP then sees this information and also agrees to “sign on” with CEG-TEK to help them forward their settlement demand letters to their subscribers with the hopes of diminishing the amount of “piracy” of copyrighted content that occurs on their networks.

NOTE: In this last scenario, you won’t find a profit motive by the ISP, and this is where I believe they get colleges and universities to sign on with them to fight piracy on their networks.

MY PERSONAL OPINION AND BIAS: Whatever the relationship or the scenario between CEG-TEK and the ISP, in the end, the subscriber is the one who suffers because it is THEY who receive the “settle or else my client will sue you as a John Doe Defendant in a U.S. federal court lawsuit for copyright infringement” letter.  Call it “speculative invoicing,” call it “Intellectual Property Monetization,” call it “fighting piracy,” when it is the individual downloader the copyright holder goes after, it is still WRONG.

To CEG-TEK’s merit, I have personally been in conversations with CEG-TEK where they were excited that piracy was actually going down on a particular ISP’s network — so apparently they do believe in what they do — but then again, whatever I feel about piracy and how the copyright laws should be changed to match today’s internet generation, in the end, it is the college students, their parents and landlords, the young graduates who are trying to find jobs, and those who are lured in by the adult content which is so addicting, widely available, and prevalent on the internet who fall prey to the tactics of the copyright holders.  For this reason, I still believe that the copyright holders should focus their efforts on pursuing those SELLING FOR PROFIT, DISPLAYING PUBLICLY WITHOUT A LICENSE, POSTING OR INITIALLY SHARING copyrighted content, but leaving alone those internet users who have no profit motive, who click on a link to view the copyrighted content.  

Back to my policy letter, I believe that it is the job of the copyright holders to police their own copyrighted materials, and not to attack, sue, extort, threaten, or pressure those who view or download content already aired on TV or in a public forum and posted on the internet.  The internet today has become like the TV and the Betamax of yesteryear.  Media becomes available, and people watch that media, whether the source is legitimate or not (think, Youtube).  TV shows are recorded, and are posted on many websites, some of them are licensed to share that content (e.g., Netflix, Hulu, ABC.com, etc.), some unlawfully do so without a license.  However, it is not the job of the internet user to inquire as to whether a source for a video is legitimate, especially when watching a show that was publicly aired just a few days beforehand.

The last thing that I want to do is to think twice when clicking on a YouTube video.  Taken to extremes, this is where the copyright holder’s activities go.


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.

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I started writing this article because there is too much conflicting information floating around the web (likely from attorneys who are trying to use fear tactics to scare you into settling with their firm), and my point was that there are credible websites, such as “Fight Copyright Trolls,” “Die Troll Die,” and a few others who have been helping individuals understand that IGNORING A COPYRIGHT INFRINGEMENT CLAIM AGAINST YOU CAN OFTEN BE A VIABLE OPTION TO RESOLVE THE PROBLEM (WITHOUT SPENDING $$$$ ON A LAWYER), so beware of the attorneys who tell you that you will lose your home, your life savings, or any other fear-of-embarrassment-and-exposure-or-financial-ruin-based argument as to “why you should settle anonymously through them for cheap, or else you might lose everything.”

I circled back to this topic in the end, but this article ended up being a “buyer beware of attorney settlement factories” article, where an attorney or his team of lawyers is trying to lure you into being part of their high-volume settlement business.  In this article, I give you the red flags to look for to spot these attorneys, and I hope this helps clarify some of the conflicting information you get from speaking to different attorneys where one attorney pushes you to settle and where another (e.g., I) suggest that you just ignore it.

“SETTLEMENT FACTORIES” are what I call these law firms. These law firms hire multiple attorneys to track down, solicit, and lure accused defendants into hiring them “for a cheap and anonymous settlement.” From a business perspective, more attorneys for the business owner means the ability to make more phone calls to solicit more accused defendants [to process more settlements], and the ability to “capture” more clients for their law firm means more profits. And, rather than actually negotiate a good settlement for their client, they run what I refer to as a “volume business” where they pre-arrange a price with the copyright holder which is above the market (copyright troll profits). Then, instead of actually negotiating a settlement, they’ll hand over the names to the plaintiff attorney and get the high-priced mediocre settlement for their client.  In return, the copyright troll allows that so-called attorney to not have to negotiate the settlement for each client, since they have a “fixed settlement amount.”  As far as I am concerned, this means that the so-called defense attorneys are part of the copyright troll problem, in a “cottage industry” sort of fashion.

What compounds the problem is that negotiating the settlement is only HALF of the solution. The SETTLEMENT AGREEMENT itself must also be negotiated, particularly because the “boilerplate” settlement agreements contain ADMISSIONS OF GUILT and UNFRIENDLY LANGUAGE which does not properly release the client from liability, nor does it properly protect the client’s rights.

For me, where writing this article will become infuriating is that suddenly these attorneys and their “beefed up” staff of hired attorneys will now start advertising 1) that they spend the time to actively negotiate the best settlement for their client, and 2) that they take the careful time to negotiate the terms of the settlement agreement so that the accused John Doe Defendant will be released from liability and the negotiated terms will properly protect the client’s rights.

If I see this, all I could say is “caveat emptor,” do your own research on:

1) How long that attorney has been in practice [REMEMBER: “Copyright Troll” mass bittorrent lawsuits targeting multiple “John Doe” defendants have only been in existence only since 2010, so any attorney who claims he has been fighting copyright trolls for 20 years is obviously lying.],

2) Check the attorney’s blog to see the HISTORY of his articles — was he one of the first attorneys who fought these cases, or is he a new “me too” copycat attorney who is standing on the shoulders of giants? (after reading this, no doubt these attorney will now add “older” articles to make their website look older), and

3) Check the blog article itself for “SEO OPTIMIZED” content, or “KEYWORDS” placed into the article.  Ask yourself, “was the purpose of this article to provide me valuable information? or was the purpose of the article to bulk it up with keywords so that search engine spiders will reward the author with first page rankings on the search engines?

4) Last, but not least, check the EARLY ARTICLES of the blog to see whether the attorney actually tried to fight these cases and hash out the legal arguments, or whether they were merely reporting on the lawsuits already in existence to attract new business.  I call these attorneys “me too” attorneys, and you can usually spot them because all they do is report the cases.

NOTE: I write this article cringing a bit because I myself just added an e-mail form at the bottom of my articles so that people can contact me if they had a question. I also dislike trashing another attorney or law firm because that simply makes me look bad. I also have a secret, and that is that I was one of the first group of attorneys contacted by EFF to figure out the “John Doe” mass bittorrent lawsuits, and so I have an advantage over the “me too attorney” both legally and information-wise as to the history of these cases, who is who, and which copyright “troll” uses which strategy in fighting a case, and under what conditions will a copyright holder accept a settlement, and how far they will bend in their settlement price. I also spend a lot of time on what I call “situational awareness,” knowing not only the law, and not only the personality of the copyright holder AND the mannerisms of the local copyright attorney hired to sue defendants in a particular set of federal courts, but I also know when a judge is going to dismiss a case (based on his past rulings), and I know when the copyright holder’s local counsel is pressured because of activities that happened in other cases, or whether they are under pressure to resolve a case because they have already have asked for two extensions from the court and I know they will likely not receive a third extension because the judge has expressed an intent for the plaintiff to begin naming and serving defendants.  This is the difference between a copycat and an original.

I also say with no shame that in 2010, I and a small handful of attorneys were contacted by the Electronic Frontier Foundation (better known as EFF) to help understand and resolve the developing copyright troll problem back when ISPs began sending letters out to their subscribers informing them that their ISP would be handing out their contact information and their identity to the plaintiff attorney / copyright holders unless they filed objections (or, “motions to quash”) with the courts. Thus, I credit the EFF for even noticing the copyright troll problem and contacting us to figure out what to do about it.

Unfortunately (or, fortunately, however you see it), that initial list of 20 attorneys has grown to over 100+ names, and some attorneys have negotiated with EFF to list them as representing clients in multiple states, hence increasing their visibility in an ever-growing list of lawyers. These are usually the “settlement factories” I referenced above, and again, caveat emptor.

Let’s pretend, for a moment, that you did not like me or my use of pretrial strategies (often making use of federal procedure) to defend a client. Or, let’s pretend for a moment that I could not take you as a client (e.g., because my case load was full, or because I did not have time to speak to you about your matter). Because there were only a handful of us attorneys on the original EFF list who knew anything about these copyright infringement lawsuits, over the years, we have become friends and have helped each other out on many of the lawsuits in which we represented both John Doe Defendants and “named and served” defendants. Some of these attorneys are still around today, and some have moved on to other areas of law, or they have stopped taking clients because fighting mass bittorrent cases has become more burdensome than the effort was worth (especially when some copyright holders do not play fairly in discovery [think, Malibu Media, LLC]).

Finding “that special client who will pay my fees to fight this case to trial” for many attorneys has become an unrealized pipe dream, and is something us attorneys often discuss.  If you truly want to fight your case, I have nothing wrong with either me, or anyone else I trust representing you in your lawsuit (I will happily tout another attorney’s merits and advanced skillsets when speaking to clients). AND, I will happily refer you to someone if I find that one of my peers would better assist you.  I *DO NOT* believe in referral fees, nor do I “share the workload” with other attorneys (this is code word for “I referred you this client, so pay me a piece of the legal fees you receive and call it paying me for my “proportional efforts.”), something that is often done in my field which, in my opinion, needs to stop. This is also why I have upset a handful of non-copyright attorneys who know nothing about these cases who have called me with a client they would like to refer to me (coincidentally, asking to share in the fees, but not in the work).

So in hindsight, while I thought I’d be reintroducing “copyright troll” subpoenas and basic copyright infringement concepts to clear up some conflicting information found on the web, instead I am providing a clear warning to those who are being actively solicited by law firms. A law firm simply should not be calling you or contacting you to solicit your business.

There is a lot of conflicting information on the web about copyright trolls, and what to do when you receive a subpoena from your ISP, what to do when you receive what is often known as a “DMCA notice” (usually signed at the bottom by Ira M. Siegel) that you have violated a copyright holder’s rights [by what is often the download of a “B-rated” film or more shockingly, that you have been accused or caught downloading pornography through the use of bittorrent (and you thought you were private), and now you want to settle the claims against you anonymously, or you want to make this go away as quickly as possible].

All I could say is STOP AND CONSIDER YOUR OPTIONS, BECAUSE IGNORING A CLAIM OF COPYRIGHT INFRINGEMENT CAN OFTEN BE A GOOD IDEA (and, when I speak to clients, I do ask them questions about the claims against them, and IF THEY CAN IGNORE, I do suggest that they DO NOTHING.) Even in a lawsuit — DOING NOTHING MAY OFTEN BE YOUR BEST STRATEGIC MOVE, as counterintuitive as that might sound.

But when you are bombarded with attorneys and law firms who actively market their fear-based services by using “Google AdWords” (ethically or unethically “buying” more well known attorney’s names as keywords so that THEY show up at the top of a search when you search for another attorney after doing your own research on who to trust, yes, you know who you are), and those attorneys then have their “assistant” attorneys calling you and pushing you to anonymously settle the claims against you, think twice. Is this person trying to get you to be yet one more client in their “volume” business??

In every one of my calls, I discuss what I call the “ignore” option which in many people’s scenario is a viable option. In many cases, I even push a client towards the “ignore” side of things.

[NOTE: There are many political reasons I have for this, such as “not feeding the troll,” or “not funding their extortion-based scheme,” or simply because I have been trying to change the copyright laws to limit or hinder a copyright holder’s ability to accuse or sue an internet user for the violation of that copyright holder’s copyrights, but NONE OF THOSE REASONS ARE REASON WHY I SUGGEST SOMEONE I SPEAK TO IGNORES THE CLAIMS AGAINST THEM.]

Sometimes an individual’s circumstances allow them to ignore the lawsuit filed against them (or the copyright violation claimed against them in the DMCA notice) simply because of 1) the individual’s financial situation, 2) the location of their home, 3) the location of the plaintiff attorney, 4) whether that copyright holder authorizes his attorneys [and pays their fee] to “name and serve” defendants and move forward with trial, 5) for strategy purposes, e.g., the psychological impact of having one or more John Doe Defendants ignore the claims against them (while other defendants rush to settle in fear of being named and served), or 6) simply because ignoring is the better option in that person’s situation.

But my point, MY POINT, ***MY POINT*** IS CAVEAT EMPTOR. If the attorney you are speaking to is running your case as a volume business, or he is pushing you towards a “quick anonymous settlement” without showing you the merits of either 1) IGNORING, or 2) if in a lawsuit, defending the claims against you, beware, beware, beware.

The EFF list of attorneys who handle “mass bittorrent John Doe lawsuits for copyright infringement violations” has grown to over 100+ attorneys, and I have never even heard of some of these attorneys (which means that they are not defending cases, but rather, are running a volume-based settlement factory). I also see a number of names where I know for a fact that some of the attorneys listed in various states are NOT LICENSED to practice law in that state (neither on the state level, nor on the federal level) — this is a clear sign of being a volume-based settlement factory. I also know from my own experience defending clients that some of the attorney names on this list have switched sides and are now suing defendants.

…Just do your research, ok? And when a lawyer calls you, and then calls you again (and again), please ask yourself why they are following up with you.

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In July, 2010, this blog was started to address the at-the-time unknown problem of copyright trolling.  For years, myself and my staff wrote articles explaining the business model of copyright trolling, which at the time was an adaptation of patent trolling (where “patent trolls” would file [often frivolous] lawsuits against alleged infringers who refused to pay what appeared to be a “shakedown” of the patent holders [e.g., “pay us or else you will end up having to pay even more to defend the claims against you in a federal court”], even when the patent being asserted against the would-be infringer had absolutely nothing to do with the product the targeted company was producing).

There were common threads between patent trolls and copyright trolls, and as the cases developed, there were common themes of how a copyright troll must act to make his model of extorting the public (the bittorrent internet users) profitable.  At the time, that included questions of 1) where and how can a copyright enforcement company or lawyer sue a group of defendants (personal jurisdiction), 2) how to link non-related downloaders into a cohesive set of defendants into a cohesive set of “John Doe Defendants,” (joinder, and my controversial strategy to force a copyright troll to sue the entire bittorrent swarm when a defendant is named and served) and 3) how to avoid risking the potential settlements from hundreds or thousands of accused bittorrent users by moving forward and “naming and serving” one or more defendants.  There were also time limits they faced based on a) how long the ISPs retained the records of which IP address was leased to which account holder / subscriber, b) statute of limitations on how long a copyright holder has to file a lawsuit, and c) how long a copyright troll attorney may keep a case alive before a judge imposes the time limits described in the Federal Rules of Civil Procedure (FRCP Rule 4m, a.k.a. the “120 Day Rule”).

Then, over the years, there arose a confusion under the discussions of “net neutrality” asking questions such as whether an internet service provider (ISP) was governed under the cable act, and if so, under what title.  The reason for this was that there were allegations that various ISPs were outright sharing the contact information of its subscribers without valid court orders to do so, thus violating the privacy rights of its subscribers.

In sum, there were a lot of issues, and we tackled each one over the course of almost five years.  The goal was to educate the bittorrent user and the accused downloader about the issues so that they understand how to act, react, and in many cases, fight against a group of attorneys with questionable ethics.

The problem is that these articles — the ones that have been so helpful to tens of thousands of accused defendants — these articles have been buried by the search engines because they are simply now aging and many articles are now many years old.  An accused defendant can no longer search for a “copyright troll” on Google and find any of my older articles.  [And, enterprising attorneys (and good for them) have put up websites containing SEO-based content full of keywords in hackneyed sentences, but devoid of useful content (e.g., the “contact our law firm, we can help you with your copyright troll lawsuit issue” type of website), while what I consider to be the “useful” content (not only mine, but content written by other attorneys in their blogs, and proactive users [really, trailblazers such as “Sophisticated Jane Doe” of FightCopyrightTrolls and “DieTrollDie”] in their respective blogs) is no longer accessible by typing the name of the particular copyright troll, issue, or case that has been recently filed.

What I will be doing to remedy this as far as this blog is concerned — and I apologize up front to the thousands of you who get updated on each and every article that I or a staff member of mine writes — is that I need to rehash some of the “older” content on the educational topics that I have already covered in the blog ad nauseam.  The reason for this is that the older content explaining the legal concepts in terms of the bittorrent lawsuits (and now in terms of the DMCA letters being sent to subscribers through the ISPs) is just as relevant today as it was five years ago.  There has been little-to-no judicial or legal oversight of the copyright trolls from the attorney generals of each state and from the lawmakers (both federal and in each state), and the problem and issues surrounding “copyright trolling” is just as relevant today as it was almost five years ago.

For these reasons, I need to violate my own preference not to repeat information or content that has already been described or hashed-out in previous articles (my opinion is that one article describing a topic is enough, and writing multiple articles containing the same topic “waters down” or “cheapens” the content of a website).  The reason I now feel the need to rehash some of the older topics is to re-teach those who have not yet been victimized by the copyright trolls, as my older articles are no longer found, even by those looking for that particular topic.

ALSO.  Copyright trolls are now enjoying a seed of legitimacy by the courts, where once upon a time us defense attorneys were “winning” the cases by arguing concepts such as “an IP address does not equal a person,” or “my client had an open wireless router, it could have been anyone who downloaded this video,” the arguments themselves have also aged and are now increasingly being ignored by the courts, even though the arguments remain “an elephant in the room,” meaning, just as valid today as they were yesterday.  On the flip-side, faulty and failed arguments (e.g., “are you negligent if you let someone else use your internet connection to commit copyright infringement” [Answer: NO!]) are being reasserted by the copyright trolls, and to my utter disbelief, they are not immediately being dismissed by the judges as being a faulty argument.

Copyright trolling has not changed in the past five years, and the successful arguments defending a case do not deserve to be ignored just because they have been used successfully by defendants in older lawsuits which too are aging.  Ignoring good case law is contrary to law, as successful arguments in one jurisdiction are binding on all other judges in that federal district, and are persuasive on cases in the federal districts in other cases.  Yet, I see more and more lawlessness in judges who ignore the case law from not only other jurisdictions, but from their own jurisdiction as well (creating a “split” in the court), and they are denying a John Doe defendant’s ability to assert what was a successful argument in another court (even one binding upon them in their own jurisdiction).

In sum, judges are allowing plaintiff copyright holders to sue larger number of defendants each week, even though nothing has changed making this new trend permissible (in my opinion, whether 200 defendants were sued by a plaintiff attorney in one lawsuit or in ten cases [having 20 defendants in each case] filed in the same week still means that 200 defendants were sued; it does not matter that the plaintiff made the cases “appear” to be smaller, especially if they are implicating the same bittorrent swarm in each of the ten cases).

Remember, the underlying copyright troll business model of “shakedown, extort thousands of dollars from each defendant, but avoid moving forward against anyone [but pretend that you are prepared to move to trial]” is still the same as it was five years ago.  It should not matter whether the content of the lawsuit is a Hollywood movie or an adult film.

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3/16 UPDATE: I have heard that CEG-TEK has retained an attorney who is filing the Dallas Buyers Club / Voltage Pictures bittorrent lawsuits in Canada to sue on behalf of their clients (it appears it may be James Zibarras).  Apparently they are doing it as a proof-of-concept to teach that Canada’s limited statutory damages ($5,000 CAN maximum) is per studio. CEG-TEK also claims that there were six months of warning letters (no settlement requested) before they started sending the settlement request letters.  Can anyone in Canada confirm or deny this?

“There is an untapped market of internet users in Canada who could be accused of copyright infringement and forced to pay thousands of dollars in settlement fees… or is there not?” -Copyright Trolls.

Canada until recently was a country which took steps to curb copyright trolling. They limited damages for copyright infringement to a maximum of $5,000 CAN (as opposed to $150,000 here in the U.S.). They set provisions where [with exceptions,] the plaintiff attorney in a lawsuit would need to pay their own attorney fees (as opposed to U.S. Copyright Law which allows a “prevailing party” to collect attorney fees from the non-prevailing party), and things were pretty good for the downloaders and pretty bad for the copyright holders. Who would ever sue in Canada?

Then it was explained to me that certain ISPs were sending what sounded like our “DMCA copyright infringement settlement letters” that we have seen from companies such as CEG-TEK. This evening, Techdirt wrote an article on the topic entitled, “More Copyright Trolls Rushing In To Take Advantage Of Canadian Copyright Notice System Loopholes.”

So apparently what was done to protect the Canadian internet users from copyright trolls has for the moment been undone. “Carte blanche, carpe diem, go get em tiger!” one might think. But I suspect this is only a temporary loophole. In an honest world, those who protected the internet users will continue to protect them, and attorneys will continue to defend against those who are accused of copyright infringement in Canada.

When I heard about what was going on this afternoon, I sighed, “O Canada!” Originally spelling it “Oh Canada,” I quickly found on Wikipedia under the “O Canada!” entry that there is actually an interesting distinction between the English version of the national anthem and the French version. The English version seemed passive (as I understand many mistake Canadians to be).  In my opinion based on my own family in Canada, the real character of Canada could be better found in the French version of Ô Canada! Where the English says, “O Canada, we stand on guard for thee,” the French version says “[We] will protect our homes and our rights. The French version also says, “As is thy arm ready to wield the sword, so also is it ready to carry the cross.”

In short, Canadians won’t stand for the copyright trolls, and I suspect this will be only a temporary problem which will be remedied by the legislature as quickly as a copyright troll might pop his head out from under the Pont de Québec and say “boo!”

A Translation of this article into French from a valued Contributor (just for fun): 

Le Canada jusqu’à récemment, était un pays qui a pris des mesures pour freiner les “copyright trolls” ou “pêcheurs à la traîne de droits d’auteurs”. Le Canada a limité les dommages pour violation de copyright à un maximum de 5000 $ CAN (par opposition à $ 150 000, ici aux USA). Au Canada, un demandeur victorieux doit le plus souvent payer ses propres frais d’avocat dans un procès (par opposition aux États-Unis ou la législaion permet à une “partie gagnante” de collecter ses frais d’avocat auprès de la partie perdante), et les choses étaient assez favorables aux téléchargeurs et assez mauvaises pour les détenteurs de droits d’auteur. Qui aurait jamais pensé poursuivre au Canada?

Ensuite, on m’a expliqué que certains FAI envoyaient ce qui ressemblait à nos “DMCA Copyright Violation Letter” comme celles que nous avons vues de la part de sociétés telles que CEG-TEK. Ce soir, Techdirt a écrit un article sur le sujet intitulé More Copyright Trolls Rushing In To Take Advantage Of Canadian Copyright Notice System Loopholes.”

Donc apparemment ce qui avait été fait pour protéger les internautes canadiens de copyright trolls est devenu chose du passé. “Carte blanche, carpe diem, go get ‘em tiger!”  On pourrait le penser. Mais je soupçonne que tout ceci est seulement temporaire. Dans un monde honnête, ceux qui protégeait les utilisateurs d’Internet vont continuer à les protéger, et les avocats continueront de défendre ceux qui sont accusés de violations de droits d’auteurs au Canada.

Cet après-midi, quand j’ai entendu parler de ce qui se passait, j’ai soupiré, «Ô Canada!» Originellement épelé “Oh Canada” j’ai rapidement trouvé sur Wikipedia l’article correspondant sous le titre “O Canada!” Article Wikipedia qui montre qu’il y a effectivement une distinction intéressante entre la version anglaise et la version française de l’hymne. La version anglaise semblait passive (les Canadiens sont parfois perçus comme passifs, à tort). À mon avis et basé sur ma propre famille au Canada, le vrai caractère du Canada pourrait être mieux trouvé dans la version française du Ô Canada! Là où les Anglophones disent: «O Canada, nous nous tenons sur nos gardes pour toi,” la version française indique ” Et ta valeur, de foi trempée, Protègera nos foyers et nos droits”. La version française dit aussi: “Car ton bras sait porter l’épée, Il sait porter la croix”.

Bref, les Canadiens ne toléreront pas les copyright trolls, et je soupçonne que ceci est seulement un problème temporaire qui sera corrigée par le législateur aussi rapidement qu’un copyright troll pourrait montrer sa tête sous le Pont de Québec et de faire ” boo! “

 

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It occurred to me that there is some confusion as to the effect the amount of time ISPs keep IP address logs (linking a particular IP address to a particular subscriber) have on whether those records will be available to the copyright holder if a lawsuit is filed after that time period has elapsed.

The question that sparked this post is as follows:

If CEG-TEK hasn’t subpoenaed someones identity, but the ISP only retains IP information for one year, then after a year it would essentially be impossible for CEG-TEK to obtain the identity correct?

My answer:

In order to understand what is going on, it is important to know who-is-who, and who does what.

I: CEG-TEK (a.k.a. Copyright Enforcement Group):  CEG-TEK hasn’t sued anyone in two years, and thus there are never subpoenas sent to the ISPs.  CEG-TEK is hired by the copyright holders 1) to track the IP addresses of accused downloaders, 2) to maximize the settlement payment by establishing connections between current accused downloads and other “older” downloads that happened at that same location (using IP address geolocation data), 3) to elicit payment in the form of “settlements” from the accused users via their settlement website, and 4) to provide attorney enforcement for those who choose not to settle via the website.

How they do this: CEG-TEK establishes relationships with the ISPs (internet service providers, e.g., Charter, CenturyLink, Giganews, etc.) and they arrange for the ISPs to forward the DMCA settlement demand letters to their subscribers.  CEG-TEK has a website they use to elicit payments from accused downloaders.  Lastly, they have attorneys (e.g., Marvin Cable) who follow-up with accused downloaders (sometimes asking for increasingly larger amounts of money).  Contrary to what is said by the attorneys, neither CEG-TEK nor their lawyers [at the moment] sue people.

II: COPYRIGHT HOLDERS (generally, the production companies): After failing to receive a settlement via the CEG-TEK settlement process, the copyright holders themselves hire out attorneys who enforce their copyrights against those subscribers who “ignored” CEG-TEK’s offers to settle.  Sometimes the attorneys are no-name attorneys, and other times, they are prolific copyright trolls such as from the law firm of Lipscomb and Eisenberg (best known as the attorneys for the Malibu Media lawsuits).

III: ISPs (internet service providers, including Universities and select VPN service providers): ISPs generally hold IP address data (and to which subscriber it was assigned to, and on what date) for one year — check your ISP’s “IP retention policy.” Congress and the RIAA/MPAA are pushing to increase this amount of time to 18 months.  For comparison purposes, in 2010, IP address data was kept for only 6 months. 

NOTE: After the ISP’s “IP retention policy” time limit elapses, if there are no copyright infringement claims, legal claims or requests on a particular IP address assignment record, they will purge that record from their database, meaning that lawsuits, subpoenas, or requests filed AFTER DESTRUCTION will not reveal the subscriber’s identity because that data is no longer available.

HOWEVER, most ISPs have a SECOND DATABASE — this second database holds IP address assignment records which have had claims of copyright infringement asserted against the subscriber, and these records are often kept indefinitely. Thus, if a lawsuit happens YEARS later (even after the IP retention policy date has expired), the data indicating which subscriber was assigned what IP address on what date and time IS RETAINED and will be available to the copyright holders and their attorneys when suing subscribers.

Lastly, (and I did not include this in my initial response,) it is my experience that ISPs generally forward DMCA settlement demand requests LITERALLY WITHIN DAYS of the accused download actually happening.  For example, Charter literally pumps out letters to their subscribers FOUR DAYS after the downloads happen.  Now obviously there are hiccups where a subscriber will receive a pile of infringements at one time, or an infringement notice is withheld until after the CEG-TEK due date has passed, but in my understanding, when this happens, it is either a business-related issue between CEG-TEK and the ISP, or a staffing issue in the subpoena / abuse department at the ISP.

Thus, where CEG-TEK is concerned, I have never heard of a situation where CEG-TEK demands that the ISP forward a letter to a subscriber and the ISP denies that request based on the ISP’s IP retention policy making the subscriber’s information unavailable.

As far as copyright lawsuits in general, yes, the IP retention policy does factor in to when a lawsuit is filed.  I have personally seen a handful of copyright infringement lawsuits filed against John Doe Defendants fail because the ISPs were unable to identify the identities of the accused subscribers because the plaintiff took too long to file the lawsuit (or a judge took too long to approve the subpoena to the ISP demanding the identities of the accused subscribers), and by the time the request or subpoena was received by the ISP, the IP address assignment records were already purged.

Thus, even though a plaintiff copyright holder does have three years from the alleged date of infringement to file a lawsuit against an accused subscriber, they are still bound by the ISP’s IP retention policy if they wish to ever identify the accused subscriber.  That being said, it is the “SECOND DATABASE” which trips up most individuals, as many individuals accused of copyright infringement are not aware that ISPs keep certain IP address assignment records indefinitely (or for a prolonged period of time), and these IP address assignment records are those which have been flagged by a copyright holder, attorney, or other law enforcement agency prior to the expiration of the ISP’s IP retention policy.

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I am observing “shifting sands” when it comes to the number of internet users who are getting caught in the web of CEG-TEK DMCA-based settlement demand letters.

For almost two years, I have been telling people that there are three internet service providers who are working with Ira Siegel — Charter Communications, SuddenLink, and CenturyLink. This has been true, and continues to be true.

I have also told people that if your ISP is participating in the “Six Strikes” anti-piracy system — specifically, Comcast (Xfinity), Verizon, AT&T, Time Warner Cable, and Cablevision — then there is nothing to worry about (because these ISPs are no longer forwarding Ira Siegel’s DMCA settlement demand letters, meaning that there is nothing at the moment to settle).  This is NO LONGER TRUE.

In recent weeks, I have observed Comcast (Xfinity) infringement notices sent to subscribers in spite of the “Six Strikes” system being in place.  [The Comcast notices contain relevant infringement information, yet only reference the “CEG-TEK Case Number;” Comcast has, however, neglected to provide the password so that the accused downloader could visit CEG-TEK’s website to determine what claims they have against him.  The unintended consequence is that in order to see what claim(s) CEG-TEK has against the accused subscriber, the subscriber would be forced to contact CEG-TEK directly to obtain the password corresponding to the Case Number (thus exposing his identity, and potentially incriminating himself when answering questions). Direct communication with copyright trolls is a big no-no, as you know it is my opinion that communicating directly with them is a bad idea because their goal is to extract a large settlement from you on behalf of their clients.]

As for the 100+ small and mid-sized ISPs who did not join the “Six Strikes” system, with hindsight, we now know that CEG-TEK has spent the last two years on an aggressive campaign to enroll as many ISPs to work with them as they could… “to stop piracy,” of course.  While it was surprising to us is that CEG-TEK went after Giganews and a growing number of VPN providers (finding the downloaders where the downloaders allegedly reside), the breaking news is that CEG-TEK has signed on COX Communications to send Ira Siegel’s DMCA letters to their subscribers.

Again, just in case you missed it — COX COMMUNICATIONS is now working with CEG-TEK.

Cox Communications has literally millions of subscribers.  They were almost expected to be part of the “Six Strikes” system, but then they declined to join keeping them free of the “Six Strikes” rules.

On a personal note, Cox used to annoy me when various copyright trolls would sue their subscribers. Instead of housing a subpoena department internally, they used to outsource all of their business relating to their subscribers to a company named NEUSTAR, a company that was complicit and merciless in turning over the records of hundreds of accused defendants in the copyright trolling lawsuits over the years.

In sum, with this article I take back a number of things that I thought almost two years ago, namely that the Six Strikes system would kill CEG-TEK’s business.  As you can see from the list below, CEG-TEK has responded to the “Six Strikes” system by focusing their efforts on growing the number of ISPs who are working with them.  Now that they have Cox Communications on board, this will be a problem for many thousands of users in the months and years to come.

Below is a list of ISPs who have been known to forward Ira Siegel’s DMCA settlement demand letters.  This list is obviously incomplete (and I have no intention of updating this list), but what is important is that two years ago, these ISPs were not working with CEG-TEK.  Now they are, and accused internet users are receiving notices of infringement instructing that they visit CEG-TEK’s website and settle the claims against them.

LIST OF INTERNET SERVICE PROVIDERS KNOWN TO WORK WITH CEG-TEK:
AeroSurf
AirtranNet
Arvig
Ashland Home Net
Bloom Broadband
Blue Ridge Communications
CenturyLink
Charter Communications
CondoInternet
DigitalOcean
EPB Fiber Optics
First Communications
GigaNews
Google Fiber
Hotspot Broadband
Internet Services of Cincinnati (ISOC.net)
MetroCast
Midcontinent Communications
Mid-Rivers Communications
Morris Broadband
NeoNova Network Services
OlyPen Cable
PenTel Data (another name for Blue Ridge Communications)
ResTech
SuddenLink Communications
ViaSat / Exede Internet
StrongVPN
Whidbey Telecom
WildBlue (service through ViaSat)

UNIVERSITIES KNOWN TO FORWARD CEG-TEK SETTLEMENT DEMAND LETTERS:
Rice University
Columbia University
Cornell University
Stanford University
University of Michigan
Wisconsin University
University of Alaska

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