If you are here, chances are you received an ISP Subpoena Notification that you are IMPLICATED as a “John Doe” defendant. Now you want to know what to do.
If you have already been named and served as a defendant, there is TIME-SENSITIVE relevant information that you need to know IMMEDIATELY. [Click here] to understand your options once you are NAMED AND SERVED as a defendant.
WALKTHROUGH: TABLE OF CONTENTS.
The purpose of this walk-through is to explain to you each topic that you as a “John Doe” defendant need to be aware of.
Click on the “Go to the Top” link to return to the list of topics below:
- How did I get sued (and how was I caught)?,
- Why did I receive a Subpoena Notification Letter from my ISP?,
- How does copyright law apply to my lawsuit?,
- What if someone else used my internet connection? Would I still be responsible if it was not me (the ISP account holder) who did the download?
- What is a “John Doe” defendant and what if the person who did the download is not the account holder?
- What are my options now that I am sued as a “John Doe”?
- If I didn’t do the download, can I LITIGATE the claims against me?
- Can I SETTLE the claims against me now by paying them money?
- Should I file a MOTION TO QUASH / an “opposition” as my ISP notification letter suggested that I could to hide my identity?
- What happens if I just IGNORE this whole thing?
- Until when am I anonymous? Am I still anonymous now? Will I still be anonymous once my ISP shares my information with the plaintiff attorney?
- When to hire an attorney, and
- How do I hire YOU as my attorney? Will you take me as your client?
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HOW DID I GET SUED?
Your internet service provider (ISP) sent you a letter noting that a particular IP address (e.g., 107.24.22.115) was observed downloading or streaming copyrighted content.
Until now, most lawsuits have been filed against internet users because the IP address assigned to the ISP account subscriber was “observed” joining a bittorrent swarm (where the uploading and downloading of the copyrighted movie was tracked by the copyright holder’s “experts”).
Recent developments suggest that you could have also been sued because you visited a website which had content hosted by Cloudflare (or that was tracked with Google Analytics), and your IP address was “observed” in the company’s logs as having viewed or streamed a movie that was hosted on a particular website.
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WHY DID I RECEIVE A ISP SUBPOENA NOTIFICATION LETTER?
You received the ISP subpoena notification letter informing you that you are a “John Doe” defendant simply because you are the you are the subscriber on the ISP account.
The plaintiff attorneys [in theory] are supposed to do their due research before suing anyone, but the only tangible evidence they have is an IP address that was “observed” streaming or downloading a copyrighted movie.
They cannot sue an IP address “because an IP address is not a person.” Thus, they jump to the conclusion that since you pay the internet bill, you must have been the one who was sitting at the computer when the copyright infringement occurred.
HOW DOES COPYRIGHT INFRINGEMENT APPLY TO MY LAWSUIT?
Without going into legal mumbo jumbo [remember, this article is simply to give you the information that you need], copyright infringement occurs when someone creates an unlicensed copy or duplicate of a copyrighted movie or film.
Using bittorrent software to download a copy of the movie onto your computer is copyright infringement.
“Watching” an unlicensed copy of the movie [from an unlicensed source] is copyright infringement. Why? In order to “stream” the movie on your computer, it must buffer or copy — even pieces at a time for only a few seconds at a time — the entire movie onto your computer.
“Unlicensed sources” are pirate websites that advertise “free movies.” Some charge a monthly fee, others sell hardware which is modified to show pirated films (think, a pirated set top box, or a “Kodi Fire TV Stick”). Legitimate (licensed) sources of copyrighted content include Netflix, Hulu, Disney+, etc.
Using Kodi and its plug-ins to “scrape” various websites to watch (“stream”) unlicensed copies of the movie is copyright infringement.
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WHAT IF SOMEONE ELSE USED MY INTERNET CONNECTION?
You are not liable for copyright infringement for unlawful activity that occurs on your internet account without your knowledge or authorization.
You cannot be found liable when a neighbor uses your internet wireless connection (“wi-fi”) without your knowledge or consent.
You cannot be found liable when your 18+ yr. old daughter comes home from college and without your knowledge or consent watches a video she found on The Pirate Bay or PopcornTime [but she can be sued].
You [the account holder] cannot be found liable when your SPOUSE watches a pirated video without your knowledge and consent [but he can be sued].
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WHAT IS A “JOHN DOE” DEFENDANT?
“JOHN DOE” DEFENDANT PLACEHOLDERS.
A “John Doe” or “Doe” is a PLACEHOLDER for a real person to be added later when the plaintiff attorney determines who actually committed the copyright infringement.
A “John Doe” Defendant is a defendant who has not yet been named and served, but who has been implicated as a potential defendant in the lawsuit.
At the “John Doe” stage of the lawsuit (before anyone is named and served), the plaintiff attorney presumes that the John Doe defendant is really the account holder. However, the plaintiff attorney could amend the complaint and name and serve someone entirely separate from the account holder.
For example, the wife could be the account holder and the accused “John Doe” defendant. However, if her husband is the one who downloaded or streamed the movie without permission to do so (and the plaintiff attorney figures this out), he would name and serve the husband as the defendant in the lawsuit.
When ISPs receive a subpoena from the plaintiff attorney ordering them to share the identity of one of their subscriber, they notify their subscribers (via an ISP subpoena letter in the mail) letting them know that they are being forced to share their information.
It is in this “ISP Subpoena Letter” that the account holder learns that she is implicated as a defendant in a particular lawsuit.
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WHAT ARE MY OPTIONS NOW THAT I AM IMPLICATED AS A “JOHN DOE” DEFENDANT?
You have three options now that you have been implicated as a “John Doe” Defendant:
Option 1: Litigation (the extreme response that you will likely not take until you are named and served as a defendant).
Option 1) File an answer with the court and proceed with litigation.
After you file an answer with the court, you will probably end up answering questions under oath (interrogatory) or showing up at a deposition (answering questions in person under oath).
This deposition is where they will take your testimony to prove whether [or not] it was you who did the download.
If you did not do the download, the plaintiff attorney could dismiss you by filing a “Notice of Dismissal” with the court.
If [in your testimony] you indicate that someone else did the download (e.g., a family member, a spouse, etc.), the plaintiff attorney will amend the complaint and add the person they believe actually did the download.
If they amend the complaint, (your family member, spouse, child, visitor, or roommate) would need to be served, and they would need to file an answer with the court and answer questions under oath, just as you did.
I am simplifying the litigation process, but I described the process to demonstrate that if you did not do the download, then you do not need to worry about litigation in a copyright infringement lawsuit.
NOTE: If you believe your family member did the download (e.g., if your 18+ child was home from college, and without your knowledge she or her friends downloaded the copyrighted videos), putting her through a lawsuit [that could affect her future career prospects] is probably not the choice you would make. Instead, to protect her, there are ways to settle the claims and protect your family without involving them in the lawsuit.
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Option 2: Settle
Option 2) Settle the claims against you. If you are concerned that through the simple legal process described above that you will admit guilt to copyright infringement (or the plaintiff attorney will learn that you or a loved one actually committed copyright infringement), then you will be hiring an attorney to negotiate a settlement of the claims against you.
I still believe that if you did not do the download, you should not settle the claims against you. But people have their reasons for settling.
If you are settling to protect a loved one from being sued, your attorney (me or anyone else) would know to expand the scope of the settlement agreement to not only release you, but your loved ones as well.
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Option 3: Filing an “opposition” with the court, also known as a “motion to quash” to prevent your ISP from handing over your contact information.
Option 3) The logic in filing a “motion to quash” is that IF you are successful in preventing the plaintiff attorney from knowing WHO YOU ARE, then they cannot sue you.
By filing a “motion to quash,” you are trying to relieve your ISP from a judge’s order which instructed it to share your contact information to the plaintiff attorney.
Filing a “motion to quash” tells the court that the subpoena issued to your ISP is defective because the federal court that authorized the subpoena does not have “personal jurisdiction” over you.
For example, if you live outside of the state in which you were sued, you could file a motion to quash the subpoena by demonstrating to the court that it has no personal jurisdiction over you. Rather, if the plaintiff attorney wishes to sue you, they could sue you in the federal court of the home state in which you live.
The first problem with a motion to quash is you are not yet a “named and served defendant,” but rather a mere “John Doe” placeholder. Thus the plaintiff attorney will argue that you do not yet have “standing” to file a motion to quash.
The second problem with motions to quash is that if you are successful, the plaintiff attorney can [through his laptop] easily re-file the lawsuit in your home state’s federal court [undoing your efforts and the thousands of dollars you just paid to your attorney to file the motion to quash].
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Option 4) Ignore the lawsuit and pray that you do not get named and served.
Option 4) Ignore the lawsuit and hope that you do not get named and served. Our law firm over the years had strategies on how to minimize the risk in doing this. We used to call it the “IGNORE ROUTE.”
However, the immediate risk is that a client could get named and served when ignoring the lawsuit. We would hope for professional courtesy for a plaintiff attorney to let us know when our client will be named and served, but this does not always occur.
The effectiveness of this strategy has become diminished because the number of defendants sued in each lawsuit has declined significantly. No longer does one lawsuit contain 2,000+ John Doe Defendants, but now, 1-25 John Doe Defendants.
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UNTIL WHEN AM I ANONYMOUS?
When the lawsuit is filed, the plaintiff attorney does not know your identity. You are 100% anonymous.
Assuming that you (the account holder) will not file a motion to quash for the reasons we discussed above, the ISP will be under a duty to comply with the subpoena. They will comply by sharing the account information of the subscriber that was assigned the IP address on the date and time when the pirated movie was streamed or copied.
Generally, ISPs give their account holders 30 days before they comply with the subpoena.
Once the 30 days elapses (or whatever deadline provided by the ISP subpoena notification letter), they will share the account subscriber’s information with the plaintiff attorney.
Once the ISP complies with the subpoena and shares your contact information with the plaintiff attorney, the plaintiff attorney learns who you are (and where you live).
After the ISP complies with the subpoena, you are no longer anonymous because the plaintiff attorney knows who you are.
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However, even though the plaintiff attorney knows who you are, there is no mention of your name on the court’s docket… not even the judge or anyone else in the world knows who you are or that you are involved in this lawsuit. Thus, aside from the plaintiff attorney knowing who you are, you are still anonymous.
The plaintiff attorney has 90 days from the date he filed the lawsuit to name and serve you as a defendant. During this time, he will try to solicit a multi-thousand dollar settlement from you. In theory, he should also be investigating whether you actually did the download you were accused of when he filed the lawsuit.
Merely filing the lawsuit with the intent of requesting a settlement from each defendant without investigating whether they actually did the accused download makes the plaintiff attorney (and his client [the movie production company]) copyright trolls.
Once the plaintiff’s 90 day deadline to name and serve defendants has elapsed (the plaintiff attorney can ask the judge to extend this deadline multiple times), to avoid having the judge dismiss the case, the plaintiff attorney must at some point amend the complaint in the lawsuit and name and serve the defendant.
Amending the complaint changes your status from an anonymous “John Doe” [placeholder] to your real name. At this point, you are no longer anonymous and the world knows who you are because your name is written on the court’s docket as being a defendant of this copyright infringement lawsuit.
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WHEN TO HIRE AN ATTORNEY
The best time to hire an attorney is WHILE YOU ARE STILL A “JOHN DOE” *AND* WHILE YOU ARE STILL ANONYMOUS.
Once the plaintiff attorney learns who you are, unless you are represented by an attorney, he will initiate his investigation as to whether you downloaded, streamed, or viewed the copyrighted video or movie.
To avoid the plaintiff attempting to contact you, before he learns who you are [from your ISP], you should hire an attorney to represent you.
This means that you should hire an attorney before your ISP shares your contact information with the plaintiff attorney.
When you retain us as your attorney, we will send over a LETTER OF REPRESENTATION to the plaintiff attorney. This is a legal document that places him “on notice” that you are represented by an attorney. Thus, all communications — all phone calls, all letters, all attempts to secure documentation, data, evidence, etc. all must go through me (the attorney).
The LETTER OF REPRESENTATION should be sent to the plaintiff attorney before the ISP shares your information with the plaintiff attorney (while you are still anonymous).
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[You can still hire an attorney after the plaintiff attorney knows who you are (or even after you are named and served as a defendant), but up to the point that you retain us, we cannot control the flow of information and the communications or inadvertent admissions of guilt that might have occurred.]
HOW DO I HIRE YOU AS MY ATTORNEY?
To hire me as your attorney, schedule a phone consultation so that we can speak about your case. I will happily answer any questions you still have. We will also speak about how much we cost, and I will provide you an estimate of how much it will cost you based on how you want to proceed.
For our phone consultation:
I do not charge for the phone consultation, but I do ask that you respect my time constraints.
There is NO EXPECTATION that you will be a client of mine once we speak (I do not take every person I speak to as a client).
My ONLY goal is to give you exactly the answers you need (which are not always the answers you want).
I have nothing wrong with giving you answers that you don’t like, even if that causes you to decide not to retain our law firm’s services. I prefer that if and when you retain me, you know exactly what you are agreeing to, and that you know [as much as possible] the outcome we will be achieving on your behalf.
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What if all of your appointments are booked before the ISP needs to share my information?
If you cannot get an immediate appointment with our law firm:
- Schedule the earliest appointment possible on our calendar. Then,
- Send me an e-mail — [email protected].
- a) Let me know that you have a deadline [that your ISP will be sharing your information before you could find an available time slot for us to speak].
b) Let me know what dates and times you can take my call.
c) Let me know that you would like to move your scheduled phone consultation to as early a time as possible.
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Can I tell you about my circumstances before setting up the free phone consultation?
YES. Before setting up an appointment, if you want to contact me first to tell me about your particular circumstances, you can:
1) Send me an e-mail at [email protected],
2) Fill out a form on any page of our website (I see, read, and respond to each one of these), or
3) Send a text message to 713-364-3476. This is our law firm’s phone number, but it also works to receive text messages (obviously let me know who you are when you send me a text message).
VOICEMAILS: With these lawsuits, I often get too many phone calls at a time for it to be efficient to answer each call. End result: many calls will go into voicemail.
Because sometimes 100+ individuals will call in a week, I DO NOT WANT YOU TO LEAVE A VOICEMAIL because it might be days before I even see it. (BUT I see e-mails and contact forms immediately as soon as they are sent).
Thus, instead of leaving a voicemail, please send me an e-mail at [email protected], or set up a time for us to speak.
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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.
10101 Fondren Road, Suite 452, Houston, TX 77096
Tel: 713-364-3476
Fax: 281-764-8744
info [at] cashmanlawfirm.com
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