If you are here, chances are you received an ISP Subpoena Notification that you are IMPLICATED as a “John Doe” defendant in a Siemens Industry Software Inc. v. John Does lawsuit. Now you want to know what to do.
Siemens Industry Software Inc. (“Siemens”) has been suing engineers for copyright infringement since 2016.
They act differently from other “copyright trolls” who only file lawsuits to extort settlement money from each defendant.
WALKTHROUGH: TABLE OF CONTENTS.
The purpose of this walk-through is to explain to you each topic that you as a Siemens defendant need to be aware of.
Click on the “Go to the Top” link to return to the list of topics below:
- Exactly what was the ISP subpoena notification letter that you received in the mail,
- Who is Siemens Industry Software Inc. and what do they want from you,
- What are your options now that Siemens has implicated you as a defendant in their copyright infringement / software piracy lawsuit,
- At what points in the lawsuit do you remain anonymous,
- How Siemens sorts each defendant into categories, and
- By analyzing which category you fit into, you’ll understand how to resolve the claims against you.
- When to hire an attorney, and
- How to hire an attorney,
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1. WHAT WAS THE ISP SUBPOENA NOTIFICATION LETTER THAT I RECEIVED IN THE MAIL?
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.
In their most recent lawsuit, Siemens Industry Software Inc. sued 142 defendants who were “observed” using pirated copies of their copyrighted software without a license.
In theory, plaintiffs are supposed to sue people, not IP addresses, “because an IP address is not a person.” In practice, since they do not yet know who you are, they sue a “John Doe” placeholder, and initially implicate the account holder as being that John Doe Defendant.
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2. WHO IS “SIEMENS INDUSTRY SOFTWARE INC.” AND WHAT DO THEY WANT FROM ME?
Siemens Industry Software Inc. develops and sells software. Their software is significantly more expensive than the ordinary piece of software. Typical software products can cost from several thousands of dollars to over $30,000 for one software product.
The problem for Siemens is that their software products have been leaked onto the internet and cracked (meaning, they run without a valid code). This has hurt them financially, and since 2016, they have filed multiple lawsuits to identity each internet user who has used their software so that they can be “made whole” [reimbursed] for the unlawful use of their software.
Siemens INTENDS to sue only engineers who used their software without a license. But Siemens only knows the IP address that was assigned to the account holder’s internet account when the software was used. As a result, often the wives or spouses of the engineers end up getting implicated as the John Doe instead of the engineer.
As a “John Doe” placeholder defendant sued for copyright infringement [which carries statutory damages of $150,000 per instance of infringement], once the Siemens Industry Software Inc. attorneys at Reed Smith LLP learns your identity, their job is to identify who in the family is the engineer, and exactly how [for what purpose] he or she made use of the pirated software.
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3. WHAT ARE MY OPTIONS NOW THAT I HAVE 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 (via an interrogatory) or showing up at a deposition (to answer questions in person under oath).
This deposition is where they would take your testimony to prove whether [or not] it was you who used Siemens’ copyrighted software without a license.
Siemens would be looking to get testimony NOT from the John Doe account holders (who is often the spouse of the engineer who used their software), but from the engineer him or herself.
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If nobody in your household used Siemens Industry Software, then simply hiring an attorney to explain to them the circumstances could resolve the claims against you without litigation or testimony under oath.
If you are the spouse called in to testify, and [in your testimony,] you indicate that someone else used Siemens’ software (e.g., a family member, a spouse, etc.), the plaintiff attorney will amend the complaint and add the person they believe actually used the software.
If they amend the complaint, (your family member, spouse, etc.) 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 the reason I described the process to demonstrate that if you did not use their copyrighted software (if it was not you), then you do not need to worry about litigation in a copyright infringement lawsuit.
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CAVEAT: If litigating, don’t forget that this is a COPYRIGHT INFRINGEMENT lawsuit.
BE AWARE THAT IF YOU LITIGATE THE CASE, YOUR ARGUMENT IS:
- SIEMENS INDUSTRY SOFTWARE INC. DID NOT HAVE A VALID COPYRIGHT WHEN YOU ALLEGEDLY USED THE SOFTWARE,
- YOU DID NOT VIOLATE SIEMENS’ COPYRIGHT RIGHTS, OR
- YOUR USE OF THEIR SOFTWARE WAS EXEMPTED FROM LIABILITY BECAUSE OF “FAIR USE” RULES.
I am saying this again for effect: “In every single circumstance, if you litigate the claims against you, you are arguing whether or not they own a valid copyright, whether you infringed their copyright if you used their software, and whether your use was permitted under the copyright laws.”
This might sound funny, but it also must be said: …If you decide to “fight” (to litigate the claims against you), you are not arguing whether their settlement offer asking you to enter into a software license to buy a particular piece of software was too expensive or not.
NOTE: If you believe your family member used their software without a license (e.g., if your 18+ engineering student child was home from college, and without your knowledge he used the pirated software while his laptop was connected to your internet account), there are ways to resolve the claims without him or you purchasing expensive software because he is a potential future paying client of Siemens Industry Software, Inc.
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Option 2: Negotiate a Software License to purchase Siemens Industry Software.
Option 2) Become a legitimate customer by having your attorney negotiate a software license to purchase (possibly a lower cost) piece of software.
If you are concerned that through the simple legal process described above (litigation) that you will admit guilt to copyright infringement, then you will be hiring an attorney to negotiate a settlement of the claims against you.
Unlike many other copyright infringement lawsuits, the “settlement” here is not a sum of money as a lump sum payment. Rather, the “settlement” in a Siemens Industry Software Inc. lawsuit is the purchase of their software.
It is reasonable that the NX or Solid Edge Siemens Industry software products that you used do not fit your needs. For example, perhaps you used a feature-rich version of their NX software (e.g.,. “Mach 3”) but you only would make use of some of the features, e.g., of the “Mach 1” NX software (“Mach 1” software is many thousands of dollars less than “Mach 3” software), your attorney could push to have Siemens allow you to purchase the lower cost software… or another piece of software altogether.
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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 with the Siemens Industry Software Inc.’s Reed Smith LLP attorneys.
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.
Many of you in this lawsuit do not live in Texas where this Siemens Industry Software Inc. lawsuit was filed. In theory, you could file a motion to quash and force the Reed Smith LLP Siemens attorneys to sue you in your home state.
Unfortunately, filing a motion to quash is a failed tactic which out-of-state attorneys have attempted in the past (and still market to their potential clients as a viable option. It is not).
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 legal “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].
If you file a motion to quash and you are successful, the judge will SEVER AND DISMISS your John Doe entity from the lawsuit. You will no longer be joined with 149 other defendants who would share your “Joint and Several” liability if this ever went to trial. Instead, the lawsuit would be:
Siemens Industry Software, Inc. v. YOU. (Only you. And, you would be litigating a COPYRIGHT INFRINGEMENT lawsuit, as I described above.)
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4. UNTIL WHEN AM I ANONYMOUS?
When the lawsuit is filed, the Siemens attorneys do 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 software was used.
Generally, ISPs give their account holders 30 days before they comply with the subpoena.
Once the 30 days elapses (or whatever deadline is provided by the ISP subpoena notification letter), they will share the account subscriber’s information with the Siemens plaintiff attorney at Reed Smith LLP who sued you.
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 sort you into a particular category of defendants, and your involvement in the lawsuit will continue (or it will be resolved based upon which category you fall into).
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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5. HOW SIEMENS SORTS YOU INTO CATEGORIES.
Once the Siemens Industry Software Inc. attorneys learn your identity, they will search for the engineer in the household.
When they identify who is the most likely individual using their copyrighted software without a license, they will then try to determine how you used their software and for what purpose.
They will search for engineering companies you might own (commercial use of their software), they will search to see whether you are working for an employer or on a project where you are licensed (or “under-licensed,” meaning multiple engineers share the same software license), or they will see if you used the software as a tinkerer (non-commercial use).
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6. ANALYZE WHICH CATEGORY YOU FIT INTO IN ORDER TO UNDERSTAND HOW SIEMENS WILL ALLOW YOU TO RESOLVE THE CLAIMS AGAINST YOU.
I am simplifying and this is not a rule, but these are my observations of the “unofficial” categories Siemens uses to classify John Doe defendants in their lawsuits:
CATEGORY 1: COMMERCIAL USE
COMMERCIAL USE: If you are using the software for commercial purposes (e.g., billing clients for work you did on unlicensed software), then Siemens will require that you purchase a legitimate copy (sometimes two copies) of the software. This could cost $30,000-$60,000 USD.
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CATEGORY 2: “UNDER-LICENSED” AT WORK
“UNDER-LICENSED” AT WORK: If you are working for a company who is purchasing licenses or “seats” for his engineers, but there are more engineers working under one license than is permitted, Siemens Industry Software Inc.’s licensing department (through Lorena Rubalcava) will be helping your employer legitimately license you and your peers.
The way Siemens would figure out that there is “under-licensing” is probably because you and your peers would take work home. Instead of using a company laptop, you would use a pirated version of the software to complete your work at home. Chances are, other people in your company would also be sued in this same lawsuit.
Our job would not be to negotiate a software license for you to buy a license yourself, but rather, to cooperate with Siemens Industry Software Inc. to allow their licensing department and attorneys to help make your employer compliant with the license agreements he agreed to (ideally, without identifying you as being the one who was caught using the pirated software). That way, when you do work from home, you will be properly licensed.
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CATEGORY 3: “TINKERERS.”
“TINKERERS”: “Tinkerers” used to be my favorite category of defendants. Engineers by nature are a creative bunch, and based on my Cashman Law Firm, PLLC’s patent practice (I am a licensed patent attorney in addition to my last ten years of experience in federal court litigation), their ability to apply one set of skills to an unrelated area of practice often astounds me.
Tinkerers often use the Siemens NX software for design and 3D printer applications, robotics, and more ingenious uses than you care to read about here. 99% of their activity is usually meant to be non-revenue producing. Also included in this category are engineers who use the software for TRAINING PURPOSES ONLY — hoping to become proficient at the software so that they will one day soon be able to use it for revenue-producing activities.
For many years, Siemens did not require tinkerers to purchase the software because their activities were non-revenue producing. In recent lawsuits, however, this changed. That being said, “tinkerers” did not need to shell out $30,000 for a Mach 3 NX piece of software, especially when a significantly lower-cost software would have achieved the same application or outcome for which they were using the more expensive software. These software purchase and licensing negotiations are all an expected part of every Siemens lawsuit representation.
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STUDENTS / LOW INCOME DEFENDANTS.
STUDENTS / LOW INCOME DEFENDANTS: This is not an official category (none of these are), but as a general rule, because Siemens Industry Software Inc. understands that today’s engineering students will become tomorrow’s lifelong customer, they are willing to make alternate arrangements, many of which do not include buying their software at all.
As far as low income defendants, again, this is not a category, but I am mentioning it because Siemens considers it when asking a defendant in the other categories to purchase software. In many software products, there are expensive tiers and there are lower cost tiers. There are also lower cost software products. If your income is low or non-existent, this is something that we could speak to the Siemens attorneys on your behalf.
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7. 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.]
8. 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.
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