An Editorial on Copyright Troll Litigation Defense

I am frustrated.  And, my frustration arises from two separate but related bases.

For nearly nine years, I have represented and continue to represent individuals that have been sued for copyright infringement in litigation that has been labeled as P2P (Peer to Peer), bit torrent, Mass Doe, Mass Copyright, Copyright Trolls, and other descriptive terms.  In that time, I represented hundreds of individuals.  Many of these individuals chose of their own accord to settle.  Others filed motions.  In one well-publicized case, my colleague John Browning and I (along with support from Terry McBride and Nettwerk Management) helped one family substantively defend litigation brought by the Recording Industry Association of America (RIAA).  In addition, I filed suit against Sharman Networks, the maker of KaZaA.  In sum, I have substantial experience in this area of the law.

Returning to my frustration, it certainly foremost begins with the Plaintiffs and their attorneys who sue mass numbers of individuals for copyright infringement and demand thousands of dollars in settlements.  I find the practice to be abhorrent, unconscionable, unconstitutional (making the argument that statutory damages must have some reasonable relationship to actual damages), and without a sound basis in business or law.  But, this is nothing new.

Before proceeding further, allow me to explain that I do not condone copyright infringement.  Indeed, I emphatically support the availability of copyrights and the enforcement thereof.  For, in addition to creating my own works of expression, I also represent individuals with copyrights and other intellectual property rights.  For many of these, I helped secure their rights.  For some, I have also sued individuals and corporations for infringing my clients’ rights.  So, I do not condone copyright infringement.

Additionally, I recommend that people pay the proper licenses and fees for use of copyrighted creative works.

All that being said, I disagree with the manner and nature in which the mass copyright troll litigation has been implemented and pursued.  Though some courts have begun to recognize the abuse of the system, others have not yet done so.  As such, the fight continues, and I shall make my firm available to anyone who seeks our representation in defending their interests.

Regrettably, the second source of my frustration arises from some of my peers who also defend those finding themselves defendants in or subjects of these copyright troll lawsuits.

(As an aside, I do not classify the Recording Industry Association of America [RIAA] or the Motion Picture Association of America [MPAA] as copyright trolls.  No, though misguided certainly, the RIAA and MPAA sought to deter what they perceived as an onslaught of online copyright infringement.  It was not a business model.)

To be more specific, my second source of frustration arises from the amounts charged by some to help these individual defendants and the advice some of these individuals appear to be hearing.

Before elaborating, I should summarize my position with respect to how a potential defendant should respond to receiving a notice from an Internet Service Provider (ISP) indicating that a plaintiff or petitioner seeks information about an Internet Protocol (IP) address assigned to the potential defendant:

I do not believe it proper to advocate the wait and see approach in all cases.  I do not believe it proper to deter people from settling.  Moreover, I do not believe it proper to encourage individuals to file motions to quash or motions to dismiss in these cases.

While I am in favor of filing motions to quash or motions to dismiss, I believe it absolutely imperative that an individual defendant know as much truthful information as possible such that they can make an informed decision on whether to wait and see what happens, settle, or fight the litigation.  Without an honest disclosure of such information, individuals will be recklessly headed toward an uncertain future.

Most of the motions to quash and motions to dismiss filed in these mass copyright troll litigation cases amount to procedural issues that can be cured and nothing more.  Consequently, the plaintiffs could theoretically refile the litigation against those who file such motions in most circumstances.  A motion to dismiss for lack of personal jurisdiction does not resolve the litigation entirely.  A plaintiff could simply refile in the individual’s home jurisdiction.  For, to successfully make the argument that a defendant does not reside or have sufficient contacts in a particular jurisdiction, a court will make a defendant provide some indication of where he or she does reside.  If the litigation is refiled, the defendant then will still face the spectre of settling or continuing a more substantive litigation battle.

A motion to quash on the basis of misjoinder is no better.  We know many of these plaintiffs have and will continue to sue individuals separately or with a smaller group of IP addresses.  Again, the litigation does not end for the defendant.

If a defendant decides to fight the litigation by filing such a motion knowing that the possibility exists they could find themselves in the same situation, I am completely behind them doing so.  And, I would welcome the opportunity to help them in this endeavor.

However, before agreeing to represent a defendant in this endeavor, I also want my clients to know the amount for which they could realistically settle the litigation.  Without this information, I believe she heads down a path ill-advised at best.  Indeed, in any other litigation, the client would have to know this information from their attorney!

Indeed, I believe it could most certainly expose an attorney to malpractice to (a) recommend to a copyright troll defendant that the defendant file a motion to quash or motion to dismiss for personal jurisdiction without (b) informing the client that the matter could be settled with a more certain outcome for only a few hundred dollars more than the attorney’s fee where (c) the plaintiff refiles the litigation against the same defendant.

No one wants to settle.  And, I have not met any attorney who likes helping copyright troll defendants settle with the plaintiffs.  However, for many individuals in these strained economic times, the best approach will be the most economical and certain outcome.  This often will be a reluctant settlement with the plaintiffs.  Consequently, I believe it improper to provide a universal recommendation to the defendants on how they should proceed.

Returning to the second source of frustration….

It begins with any attorney charging individuals sued by the most recent wave of copyright trolls more than $500.00 to help settle the matter.  It simply should not cost more than $500.00 to settle one of these matters.  With our firm, the flat fee we charge extends indefinitely should anyone have future questions (e.g. how to fill out a bar application, an employment form, etc.)

My frustration then arises from attorneys who do advocate a universal recommendation to file a motion in these litigation matters without understanding an individual’s unique circumstances.  I do not believe an attorney can soundly recommend one approach over another without giving an individualized assessment.  Should someone who barely can arrive at $2000.00 pay most if not all of that amount for a motion to quash that may or may not be granted?  Where the litigation can be refiled against them?  Where they could be named?  And, where a settlement could be reached for an amount or payment arrangements within $1000.00 of the fee (the settlement agreements are confidential, so no specific amounts will be disclosed here and no one should take these amounts as a suggestion to what an actual settlement figure may be)?  I think not.

Many people will want to fight on principle.  I am all for doing so.  But, these individuals must be aware of the consequences, risks, and other viable opportunities in front of them.

So, my frustration arises from peers that fail to provide prospects with all of the information.  In some cases, I have hear of misinformation being provided.

This is not an opportunity for defense attorneys to find an economic opportunity in the misfortune of the defendants.  The defendants should be given all information in full disclosure with no bias.  If they then decide to file a motion, all the better.  We need more good law developed.  However, if they believe that for their circumstances a settlement would be the best result, then they should not be discouraged from doing so.  Finally, if the defendant simply has no money, it may be that a wait and see approach will be best.

In the end, the best and most necessary outcome is for the courts to put a stop to the misuse of the legal system.  This does not mean end copyright infringement litigation.  But, in the contexts discussed above, this individual believes it must mean one defendant per lawsuit for infringement.

About clmuddjr