Everything you need to know in one page about your Malibu Media, LLC (‘X-Art’ Siterip) Movie Lawsuit and ISP subpoena.

Malibu Media, LLC (“X-Art.com Siterip”) Movie Lawsuit FAQ

YOUR INTRODUCTION TO MALIBU MEDIA, LLC.

In mid-February, many of you received a notice or letter from your Internet Provider (“ISP”) that you were sued by Malibu Media for illegal filesharing. Now we are weeks later, and the 30-days deadline that the ISP gave you to file an ‘objection with the court’ is about to run out.

Because the ISPs gave the subscribers 30 days, most do nothing, and in the next week or so, the ISPs will hand over the account information to the Malibu Media attorneys. For that reason, I am writing this quick FREQUENTLY ASKED QUESTIONS (“FAQ”) article so that you have the information you need.

*IT IS NOT TOO LATE!*

This article is merely meant to provide some free help on Malibu Media so that you can get straight to the answers instead of sorting through hundreds of articles on this website. The answers will be short and to the point. If you want explanations or more detailed answers, you can either ask me, or delve deeper into the 200+ articles I have written on this blog. Malibu Media, LLC has been suing defendants since 2012, so there are many articles on their subpoena and ISP tactics.

HOW DO I BEST LEARN ABOUT THE MALIBU MEDIA, LLC CASES?

If you have been implicated as a John Doe defendant in a Malibu Media, LLC lawsuit, there are TWO (2) main articles you should read immediately:

1) [THIS ARTICLE] “Everything You Need To Know in One Page About Your Malibu Media, LLC (X-Art) Lawsuit [FAQ],” and then

2) “In-Depth Malibu Media.  Their Lawsuits, Their Strategies, and Their Settlements.”

[FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC (“X-Art” siterip) lawsuit, click here. Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles relevant to Malibu Media, LLC first), or to get your questions answered.]

WHO IS SUING ME?

If you have come to this web page, Malibu Media, LLC is probably the company suing you. Malibu Media is suing subscribers across the US for the unlawful download and seeding of adult film / pornographic videos hosted on their “X-Art.com” website.

FOR WHAT DID MALIBU MEDIA SEND A SUBPOENA TO MY ISP?

Copyright Infringement. Specifically, for acquiring and sharing their set of Malibu Media / X-Art adult film movies and siterip(s) using a peer-to-peer file sharing method called bittorrent.

Copyright infringement lawsuits are for $150,000 assuming the copyright holder can sue for statutory damages. To do this, Malibu Media, LLC needs to have the copyright at the time they filed the lawsuits.

Malibu Media  has been known to send subpoenas and file lawsuits for x-art.com videos which were not yet published on the Malibu Media / X-Art website, or anywhere else, and for this reason, on 2/9/2016, I wrote the article entitled, “Is Malibu Media “faking” the publication requirement in their lawsuits?”.  I am of the opinion that there is a legal argument for claiming that Malibu Media, LLC is entitled only to ACTUAL DAMAGES, as I describe below.

ACTUAL DAMAGES would be the “lost damages” or “lost profits” Malibu Media suffered because of the alleged copyright infringement that they claim occurred.  For a typical movie lawsuit, the actual damages would be the cost of a movie ticket, DVD rental, or the cost of the DVD itself.  In the case of Malibu Media, LLC, the damages would be at most the annual subscription for $99, as shown below.

IS MY COPYRIGHT INFRINGEMENT LAWSUIT A CRIMINAL MATTER (CAN I GO TO JAIL OR PRISON?) OR A CIVIL MATTER (OR DO THEY JUST WANT MONEY FROM ME)?

Your Malibu Media, LLC lawsuit is most likely a copyright infringement civil lawsuit, which means that Malibu Media is suing you for money damages.

Malibu Media generally files lawsuits claiming copyright infringement for one title, but in their filing, they claim that you downloaded many other titles.  They do this so that if you ask for a settlement, they can multiply that settlement amount by the number of titles they claimed that you downloaded.

WHAT IS CONSIDERED COPYRIGHT INFRINGEMENT IN A MALIBU MEDIA LAWSUIT?

Copyright law gives copyright holders a number of exclusive rights (which means that they can sue anyone who violate and/or infringes those rights).

Copyright infringement occurs when someone practices (‘someone does’) the exclusive rights granted to copyright holders. For example, exclusive rights include the right to make copies (infringed by downloading), the right to distribute copies (infringed by sharing/uploading/seeding), the right to display (infringed by streaming).

In a Malibu Media LLC lawsuit, copyright infringement allegedly happens when you connect to a bittorrent swarm and download or upload one or more of Malibu Media’s copyrighted videos.  However, there is reason to believe that Malibu Media is not actually tracking the entire download, but merely a snippet of it, so their evidence may be lacking.

ARE ALL MALIBU MEDIA COPYRIGHT INFRINGEMENT LAWSUITS FOR $150,000?

Yes. Regardless of whether or not it is Malibu Media LLC suing, a copyright infringement lawsuit generally asks for $150,000 in statutory damages.  STATUTORY DAMAGES is given by the copyright laws regardless of whether Malibu Media is damaged for $500,000, or whether they are damages for $5 in lost profits.

In order for Malibu Media to get statutory damages, they must demonstrate what is called ‘willful’ infringement, or that the accused defendant knew he was downloading pirated films.  If you (the accused “John Doe” Defendant) did not know you were downloading, or you did not have the intent to be downloading, you could claim your download of Malibu Media’s titles was not ‘willful.’

‘Not willful’ copyright infringement damages are from ‘$750 to up to $30,000, plus attorney fees.’ Typically, expect attorney fees awarded to your opponent if a John Doe Defendant defaults to run a few thousand dollars (meaning, there is no litigation, no discovery, no trial), expect the Malibu Media lawyer suing you to be awarded a few thousand dollars.

HAVE THERE BEEN COPYRIGHT INFRINGEMENT CASES WHERE THE DEFENDANT ONLY HAD TO PAY $750 + MALIBU MEDIA’S ATTORNEY FEES?

Yes, but this is not common. If your attorney agrees that your activities were not ‘willful,’ this could be a viable route or strategy.

IF I AM BEING SUED, WHY MIGHT I HAVE TO PAY MALIBU MEDIA’S ATTORNEY FEES?

Copyright law rewards the ‘winning’ party and punishes the ‘losing’ party. That way, the so-called injured party (whether Malibu Media or the falsely accused internet account holder) gets to have his fees paid to his attorney reimbursed by the other side. You only have to pay the other side’s attorney fees if you lose the case to Malibu Media on the merits.

The law gives Malibu Media the right to ask for attorney fees so that they could enforce the copyright rights against infringers without having to worry about spending all of their money in litigation for a problem they did not cause.

The law is lopsided, because copyright owners like Malibu Media, LLC generally have funds to sue, but those they sue do not have the money to defend themselves, so the defendants are often left helpless without anyone to fight their case.

IF I WIN, CAN I ASK FOR THE ATTORNEY FEES I PAID MY LAWYER TO BE REIMBURSED BY MALIBU MEDIA?

Yes, the law gives the ‘winner’ the ability to ask for attorney fees from the ‘loser’. The ‘win’ or ‘loss’ must be what is called “on the merits” which means that it must be found by the court or by a jury that copyright infringement did or did not happen.

Your Malibu Media plaintiff attorney slithering away and dismissing you mid-lawsuit because they realized they sued you without justification generally does not give you the ability to ask for attorney fees from them.

WHY DO WE CALL MALIBU MEDIA ‘COPYRIGHT TROLLS’?

Copyright infringement lawsuits based on bittorrent activity accuses a defendant of a crime without that defendant being there ‘at the scene of the crime.’ Any evidence linking the defendant is circumstantial.  Their methods have been written up by legal scholars as being an “extortion scheme,” and some even say that they actually don’t have evidence of copyright infringement (only “snapshot” evidence).  As early as 2015, judges in other countries already started calling the sufficiency of Malibu Media, LLC’s so-called “evidence” into question.

Malibu Media attorneys have been called “copyright trolls” because they elicit settlements not knowing or caring whether the individual they accused of copyright infringement actually did the ‘crime’ or not.

It is the belief of the author that filing “Malibu Media, LLC v. John Doe” “single John Doe Defendant” copyright infringement lawsuits against individual bittorrent users is unethical in itself. The Malibu attorney filing the lawsuit is not doing so in order to protect the rights of the copyright holder, nor does that attorney have an intent to bring the lawsuit to trial (except this one time that it actually happened). Rather, they file the lawsuits to ‘monetize’ the copyrights (meaning, they take money from the bittorrent users as a model of rewarding the copyright holders).

This would be fair if the accused downloader were asked for the actual damages they caused the copyright holder (e.g., the loss of a sale of a movie ticket or DVD, plus the costs of the copyright holder in recovering the lost sale, e.g., the $400 filing fee for the lawsuit plus the attorney fees involved in recouping the losses), but this is not what Malibu Media, LLC copyright holders ask for. Instead, they ask for exorbitant settlement amounts — sometimes thousands or tens of thousands of dollars — under the threat of pursuing the downloader for the full $150,000 statutory damages it is entitled to ask for in a lawsuit.

This activity is commonly called “copyright trolling,” and consequently, Malibu Media attorneys who file serial copyright infringement lawsuits and their copyright holder movie companies are called “copyright trolls.”

WHY WAS I CAUGHT? WHO CAN DEFEND ME?

Copyright infringement lawsuits against John Doe Defendants are filed because that Internet Subscriber (or someone using or mimicking his IP address) downloaded a movie using bittorrent.

Sometimes, the accused defendant will have used software not realizing that it uses bittorrent to acquire the adult videos in order to allow the internet user to view them.

Malibu Media, LLC believes that it is a viable marketing strategy to use the weight of the copyright law to ‘enforce’ or ‘monetize’ their copyright rights (copyright infringement lawsuit judgements carry $150,000 statutory damages as a “mandatory penalty” regardless of whether the copyright holder actually suffered any damages).

BAD ‘COPYRIGHT TROLL’ ATTORNEYS

Because the copyright laws are so fiercely violent and heavy handed against the copyright infringer, X-art copyright holders and their ‘copyright troll’ attorneys leverage the threat of these laws to force the accused downloaders to pay thousands of dollars in settlement fees, sometimes just to avoid a lengthy litigation.

BAD ‘DEFENSE’ ATTORNEYS

[NOTE: The reason I have decided to include this topic here is because based on how many clients our firm has taken on, we limit the number of clients we will accept at one time. When we are not accepting clients, we do refer and recommend attorneys to retain. However, when dealing with Malibu Media, LLC v. Doe ‘copyright troll’ cases, there are many bad actors out there, even on the defense site of things. For this reason, I am identifying two kinds of attorneys you should watch out for in case you and I end up not being able to speak.]

“TURNKEY” / “SETTLEMENT FACTORY” DEFENSE ATTORNEYS

There are attorneys who have turned the copyright infringement lawsuits into ‘turnkey’ settlement operations, ‘riding the gravy train of a broken system’, as one prominent blogger correctly put it. These attorneys scale up and hire attorneys to answer phone calls, but instead of honestly evaluating the meritorious defenses of a would-be client, they scare, threaten, and apply high-pressure tactics to accused defendants manipulating them to settle the claims against them.

Knowing that Malibu Media, LLC runs their settlement operations from a location above-the-head of the local attorney who is filing the lawsuit, their settlement prices have become well known.  Defense attorneys have been known to offer their clients higher than normal settlement amounts in return for foregoing the need to actually participate in settlement negotiations.  Thus, where a Malibu Media, LLC settlement would go down to $300 per title, the ‘turnkey’ or ‘settlement factory’ attorney will be more than happy to agree to a $600 per title settlement in return for a quick settlement.  The problem is that Malibu Media asks for settlements for 20+ titles in a lawsuit, so a $600/title x 20 title settlement = a $12,000 settlement.

That same so-called defense attorney will charge $800 for the negotiations ($400 x 2 hours, although 2 hours were not spent on the client’s matter), and the client will pay $12,800 total.  However, if he hired an attorney who charged $2,400 ($300 x 8 hours), and the settlement ended up being $6,000 ($300/title x 20 titles = a $6,000 settlement), the extra few bucks paid to the attorney to actually negotiate the settlement would save the client a little under $6,000 than if they paid a ‘settlement factory’ attorney.

In sum, the sign that you are dealing with a ‘turnkey’ operation or a ‘settlement factory’ is unusually low costs to represent a defendant in a settlement.

NOTE: Don’t get me wrong, I am all for low-cost representation, but in a law firm, you pay for the time that attorney expects to spend on your case. If he is billing $400/hour (this surprised me too), and he charges a flat fee of $800, expect that only two (2) hours will be spent on your case IN TOTAL (including the so-called ‘free’ conversation. I have had too many run-ins with these attorneys and their methods, and all I can say is that they are part of the problem, not the solution.

“WERETROLL” ATTORNEYS (THOSE WHO PRETEND TO DEFEND, BUT ARE LOYAL TO THE ‘COPYRIGHT TROLL’ ATTORNEYS).

This is a horrible reality, but there is no quick money in the defense side of the lawsuits. The alluring rush of settlement commissions (I call those ‘kickbacks’), notoriety, and settlement commissions come from those who team up with the copyright holders, yet continue the facade that they are representing defendants. These attorneys might as well call their law firms ‘slaughterhouses’, because all they do is take scared clientele, and serve them to the copyright trolls to be slaughtered. These attorneys are sometimes masterful in their marketing, but their clients do not know that they are paying a premium for the settlements they pay to the copyright trolls. This premium the ‘weretroll’ attorney would receive might be the difference between a ‘fair’ settlement and the inflated settlement they ultimately force upon their clients. (Being real, no settlement is ‘fair’, but a ‘fair’ settlement is a settlement that takes into consideration the needs of the client, their guilt or non-guilt, and their ability to pay.)

I have seen this kind of attorney a number of times since we have represented clients since 2010, and usually, EVENTUALLY they will ‘switch sides’ and stop pretending to be on the defense side of things, and they will outright start suing the very kind of defendants they once promised to defend. However, there are still a few holdovers, and I usually don’t even need to mention them because people have told me they ‘feel’ when something is wrong, and I tell people to either trust their instincts, or if I cannot take them as a client (funny enough, this happens in a firm such as mine), I’ll refer them to an attorney who not only has a good reputation, but who I would personally call for help if I ever was put in similar circumstances as my clients are in.

BAD LEGAL SYSTEM – NO PUBLIC DEFENDER FOR ‘CIVIL’ CASES

Here I have spent 3+ paragraphs detailing the pitfalls a client could fall into when hiring a defense attorney, and I did not address the faulty legal system itself. What is missing from the federal courts on the civil side of the lawsuit is some ‘public defender’ or attorney paid for by the court to represent defendants who cannot afford to represent themselves. I would happily volunteer for this position here in the Texas federal courts because it is very needed.

Further, with the copyright laws and DMCA statutes as they are, there is no mechanism or method to force a copyright holder to consider the circumstances of a defendant, where even if that defendant is guilty, the copyright holder would agree to release that defendant from liability just because they cannot afford to mount a minimal defense.

What I just wrote sounds hokey, but the $150,000 statutory damages coupled with the high cost of representing a client in a copyright infringement case creates an ‘uneven playing field’ where the copyright holders (the ‘copyright trolls’ can run rampant suing hundreds of downloaders with the same set of boilerplate filings, but ONE DEFENDANT needs to spend thousands or more to pay for a minimal defense.

In short, the public defender system for civil cases is broken, and because of this, you will often hear the stories of “old ladies,” “the elderly,” and “war vets” who are thrown through copyright infringement lawsuits, even though they don’t have the funds to defend themselves (and too often, they don’t even have an attorney to defend themselves). To implement a defense, our firm does take cases at reduced rates and we even provide pro bono (free) representation for those who need our help as well, but comparing the number of calls I get with the number of clients I can take on, it is a daunting task.

THEN THERE IS MY KIND OF LAW FIRM

Then there are law firms such as mine (Cashman Law Firm, PLLC) and others like mine who will take the accused defendant through the steps of 1) analyzing the case, 2) reviewing the potential damages given the circumstances, 3) faithfully reviewing each option with the accused defendant given their particular circumstances, and we do this for free as “free legal assistance,” often spending an hour or more with accused defendants without the intention that they ever become clients. I have literally thousands of people who our firm has helped this way.

We are not “Wal*mart” low as far as our prices go, and we cannot compete with a Legal Zoom. However, we do minimize our expenses as much as possible, and we do not bill multiple clients for the work done once on a case. This sounds unimpressive, but it is a big benefit to our paying clients because many of our clients are “John Doe” Defendants in the same lawsuit. Similarly, once a settlement contract and terms is negotiated with a particular attorney for one client, there is no need to bill future clients for settlement negotiations (unless there are specific goals or needs specific to a particular client, and then we would bill for the time it would take to accomplish those goals or needs.) Lastly, we have set up methods of allowing clients to spread out the cost of their attorney fees, sometimes over the course of six months. We also do not charge clients for credit card fees or other miscellaneous expenses, because this is part of the cost of doing business.

Next Step: Schedule a Consultation

Follow the three steps below to begin working with a Cashman Law Firm, PLLC attorney:

1. Schedule a phone appointment to speak to an attorney about your matter.

2. Get, sign, and return retainer agreement.

3. Sit back, relax, and let us work on your behalf to get you the results you need.

After scheduling your appointment online, you will be contacted by phone at the specified date and time by a Cashman Law Firm, PLLC attorney.

HOW DID MALIBU MEDIA CATCH ME?

WHAT IS A BITTORRENT SWARM?

When bittorrent software is run, it connects to what is called a ‘bittorrent swarm’. Think of this as if it is a bunch of people entering the same room, or the same chat room. In this room, you will download pieces of the movie from everyone else (each participant shares pieces of the movie that they have acquired), and you will share pieces of the movie that you have already downloaded with everyone else in the room who has not yet acquired that piece of the movie. By everyone working together (sharing whatever pieces of the file one has), every person is able to quickly share copies of the movie with everyone else in the room.
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To be “in the room” (to be ‘joined’ as part of a bittorrent swarm), what is really happening is that your computer connects through your ISP to other computers which are also part of that bittorrent swarm (the “room”). The bittorrent swarm itself is a fiction — it is an interconnected set of networked computers which join together to facilitate the transfer of a file (in this case, the X-Art adult film videos).

​WHAT ABOUT USING BITTORRENT GOT ME CAUGHT?

The way a downloader is caught is one of the people is a ‘snooper’ in the room. This ‘snooper’ is pretending to be a downloader, but he really is there to catch everyone else in the act of copyright infringement. This is usually the copyright holder, Guardaley, or some forensics company or set of servers hired to record the activities in a particular bittorrent swarm.

WE ALL EXPOSE OUR IP ADDRESSES IN A SWARM (WITHOUT A VPN)

In the ‘room,’ everybody has a big sign with their IP address (an IP address is an assigned network address that is assigned to every internet account by the Internet Provider (ISP) for a certain length of time (usually 24-48 hours). By recording that IP address, the ‘snooper’ takes a picture of that IP address (and if they are thorough, they’ll collect enough evidence to prove that a particular individual downloaded the entire file).
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The ‘snooper’ then looks up which ISP owns that IP address, and that information is turned over to the copyright troll attorney who files lawsuits based on this information.

HOW LONG DOES HE HAVE TO FILE THE COPYRIGHT INFRINGEMENT LAWSUIT AGAINST ME?

3 Years from the alleged date of infringement.

DOESN’T THE ISP PURGE ALL RECORDS BEFORE 3 YEARS?

Yes, and this is something that the copyright holders need to pay attention to, or else the ISP will have no way to identify you as being the one who had that particular IP address assigned to them when the download allegedly took place.
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Generally, the ISPs keep IP address records for as long as they indicate in their “IP Address Retention Policy” (every ISP has one). This used to be only 6 month as an industry standard (when we started the law firm in 2010, it was 6 months), but I have been seeing ISPs keep records of their IP addresses for 12 months, and more recently, Congress was trying to push them to keep records for 18 months.

WHAT IF I AM SUED BEFORE MY ISP PURGES THEIR IP ADDRESS RECORDS?

Your ISP will not purge your IP address records if they learn that there is a possible lawsuit which requires those records. Instead of purging your record according to their IP retention policy, your ISP will ‘lift’ those records into a second database, and those records are kept indefinitely. It goes without saying that they will be available for trial, if your case ever goes in that direction.

WHAT ARE THE ‘COPYRIGHT TROLL’ ATTORNEY’S OPTIONS WHEN THEY DECIDE TO PROCEED WITH THE LAWSUIT?

IF THE ATTORNEY FILES A “JOHN DOE” LAWSUIT AGAINST THOSE IN THE BITTORRENT SWARM:

At this point, the attorney either files lawsuits against one or more “John Doe” defendants (“John Doe” being a PLACEHOLDER until the plaintiff attorney either:
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SETTLES the claim against the internet subscriber and they are paid a settlement amount,
DISMISSES the case because they realize that the accused “John Doe”did not do the download, or
NAMES AND SERVES: they confirm that the accused “John Doe” did the download and they NAME AND SERVE him to be a defendant in the lawsuit. If the actual downloader is not the account holder, the plaintiff attorneys learn who actually did the download, and they name and serve that new individual to be a defendant in the lawsuit in lieu of the account holder.

IF THE ATTORNEY SENDS A DMCA SETTLEMENT LETTER TO THE ISP TO FORWARD IT TO THE BITTORRENT SWARM PARTICIPANT:

Alternatively, in the case of RIGHTS ENFORCEMENT (of which Malibu Media, LLC is likely a client because of the Guardaley connection), they would send a DMCA abuse / copyright infringement notice to the ISP who owns the IP address, and based on the relationship between the copyright enforcement company and the ISP, they either 1) pay, 2) force, or 3) nicely ask the ISP to forward that DMCA notice to the customer who was assigned that particular offending IP address at that particular date and time (the assumption is that this customer was the one in the ‘room,’ or in the bittorrent swarm).

AT THIS POINT, AM I STILL ANONYMOUS?

Whether you received a subpoena letter from your ISP indicating that you have been implicated as a John Doe in a Malibu Media, LLC copyright infringement lawsuit or whether you received a DMCA settlement demand letter, you are still anonymous.

I RECEIVED A DMCA NOTICE. AM I ANONYMOUS?

Yes, you are. Do not do anything to compromise that anonymity, as this can be your golden ticket to having an attorney negotiate down the settlement amounts they are claiming from you.
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Calling Malibu Media, LLC, their attorneys, or even Carl Crowell’s RIGHTS ENFORCEMENT phone number will compromise your anonymity. Plus, as I have mentioned before, their website is likely armed with scripts and trackers (likely both legal and illegal, traceable and untraceable), so it is better to have your attorney (me, or anyone else who knows about their tricks, barbs, and traps) navigate that lawsuit for you and speak to their attorneys for you. We know how not to admit guilt. You might too, but this is what we do, so trust our expertise in this area.

CAN I IGNORE THIS DMCA NOTICE?

It goes without saying that if you ignore the DMCA notice, the copyright holder still can direct his attorney to file a copyright infringement lawsuit against you. In that lawsuit, he would have the judge authorize a subpoena to be sent to your ISP forcing them to reveal your identity. The plaintiff attorneys have three (3) years from the alleged date of infringement (minus the time the ISP keeps IP address records according to their IP address retention policy) to file the lawsuit against you.

I RECEIVED A SUBPOENA LETTER FROM MY ISP TELLING ME I AM A “JOHN DOE” IN THE MALIBU MEDIA, LLC LAWSUIT FOR THE DOWNLOAD OF THEIR X-ART SITERIP. HOW DID THAT HAPPEN?

The Malibu Media, LLC plaintiff filed a lawsuit claiming that he did not know the identity of the downloaders, and the judge rubber-stamped an “expedited discovery” order forcing the ISP to hand over your information unless you file what is called a “motion to quash.”

SHOULD I FILE A MOTION TO QUASH?

Maybe. It depends on the subpoena, your circumstances, and whether you were sued in the state in which you live. Remember, courts do not have PERSONAL JURISDICTION over defendants who have no contacts with the state. (That was legal jargon for ‘if you don’t live in a state, but you were sued there, that court might need to dismiss your case and allow the plaintiff to maybe sue you in the state in which you live.)
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If you file a motion to quash, the court will set a hearing date to determine whether it has personal jurisdiction over you. Usually, this can be satisfied with a “do you live in this state?” “Yes I do, your honor.” “Motion to quash denied,” or vice versa.

IF I DO NOT FILE A MOTION TO QUASH WHAT HAPPENS?

Your Internet Provider (ISP) will likely wait a period of time to see if you filed an objection with the court (a motion to quash). Generally, this waiting period is 30 days, but people have complained that it sometimes is much shorter. After that time elapses, they hand over your information to the Cook plaintiff attorney.

WHEN SHOULD I HIRE AN ATTORNEY FOR A “JOHN DOE” LAWSUIT?

The best time to hire an attorney in a “John Doe” copyright infringement lawsuit is when you receive a subpoena notice from your ISP.
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Hiring an attorney while you are still a “John Doe” gives you plenty of time to get your affairs in order.
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Please click here for more details on this topic.

DO NOT WAIT TO HIRE AN ATTORNEY UNTIL AFTER THE ISP HANDS OVER YOUR INFORMATION TO YOUR PLAINTIFF ATTORNEY.

There are a lot of things that you can accomplish before your ISP hands out your information. If you want to negotiate a truly anonymous settlement, you can have your plaintiff attorney cancel the subpoena as to your John Doe entity before your ISP shares your information with him.

ABSOLUTELY DO NOT WAIT UNTIL YOU ARE NAMED AND SERVED AS A DEFENDANT IN THE LAWSUIT.

Once you are named as a defendant in the lawsuit, your “John Doe” status is over, as is your anonymity. Not only will the court know who you are, but at this point, the INTERNET will know who you are. Forever, spiders and crawlers who search and index the legal sites and the lawsuit sites will index your name as being implicated as a defendant in that particular lawsuit.

• Even if you settle the case, your reputation will be forever tarnished.
• Even if you fight the case AND WIN, your reputation will forever be tarnished.

Trying to negotiate a settlement after being named and served is like trying to negotiate with a gun to your head. It is doable, but because the plaintiff attorney will have little financial incentive to negotiate, you lack LEVERAGE.
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DO NOT wait until you are named and served before hiring an attorney. Do it immediately when you learn about the lawsuit from your ISP.

NEXT: ENGAGE IN SETTLEMENT NEGOTIATIONS, EVEN IF YOU DO NOT INTEND TO SETTLE.

Keep reading for details on what needs to happen in a settlement negotiation, and how your attorney should represent you in a settlement negotiation.

ANONYMOUS SETTLEMENT NEGOTIATIONS? A misnomer.

Malibu Media, LLC settlements, with some tweaking of the settlement agreement during the settlement negotiations can be an anonymous settlement.  There are a small number of settlement factory attorneys who are advertising and advocating “anonymous settlements.”  Buyer beware, as settling anonymously in the way they suggest can expose you to additional lawsuits, AFTER you have just paid Malibu a settlement.

Click here to read about “Malibu Media anonymous settlement, a misnomer.”

HOW AN ATTORNEY SHOULD REPRESENT A MALIBU MEDIA CLIENT

(Below is merely an excerpt from the linked article (below), with many of the details removed for the purposes of brevity. For the complete list, visit the MALIBU MEDIA (“X-ART” SITERIP) PAGE.)
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STEP 1) STOP PLAINTIFF FROM CONTACTING YOU OR ANYONE ELSE ON YOUR BEHALF (WORKPLACE) ABOUT THE CLAIMS AGAINST YOU.
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STEP 2) RESEARCH AND DISCUSS CLAIMS COMPARING PLAINTIFF ATTORNEY’S PROOF OF INFRINGEMENT VERSUS ACTUAL BITTORRENT USE OR NON-USE.
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STEP 3) DISCUSS AND NEGOTIATE SETTLEMENT OPTIONS WITH PLAINTIFF ATTORNEY, WHETHER BY PAYING A SETTLEMENT FEE, OR NO SETTLEMENT (PROCEED WITH LAWSUIT).

There are reasons for opening up settlement negotiations, even if you choose later not to settle. For example, an offer of settlement can be used as a shield to protect you from attorney fees for the remainder of the lawsuit. If you are later found guilty and the judge awards a settlement amount equal to or less than the settlement amount you offered, the copyright holder will be required to reimburse you for ALL OF YOUR ATTORNEY FEES to litigate the case after the offer of settlement was made. Thus, engaging in settlement negotiations is a good insurance tool, even if you later choose not to settle.
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The “no settlement” option is obviously the scenario where the client did not do the download, or the plaintiff attorney was unwilling to come to an amicable arrangement.

Obviously if neither side can agree on an early solution to the problem, then yes, it makes sense to proceed to allow the plaintiff attorney to name and serve your client, file an answer with the court, and proceed with defending your client’s interests in the courtroom.

STEP 4) NEGOTIATE PRICE (IF BENEFICIAL, CONSIDERING CLIENT’S ABILITY TO PAY). PROVIDE DOCUMENTATION OR STATEMENT IF NECESSARY TO SUBSTANTIATE CLAIMS.
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STEP 5) NEGOTIATE TERMS OF SETTLEMENT AGREEMENT.
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STEP 6) HAVE PLAINTIFF ATTORNEY SIGN AGREEMENT(S), THEN HAVE CLIENT SIGN AGREEMENT(S) AND PROCESS SETTLEMENT PAYMENT.
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STEP 7) FOLLOW-UP WITH PLAINTIFF TO HAVE CLIENT’S “JOHN DOE” ENTITY DISMISSED FROM CASE.

In sum, copyright infringement cases are all similar, but each one has its nuances. The steps described in this article apply to any John Doe Defendant in any copyright infringement lawsuit, and for this reason, I wrote this article 1) to not only give the client an understanding of the steps which are required in representing a client prior to being named and served in a John Doe lawsuit, but more importantly, 2) to allow that client to hold their lawyer’s toes to the fire and make sure they are being represented carefully and individually.

WHAT ARE THE STEPS REQUIRED TO FIGHT MY LAWSUIT?

The steps required to fight your copyright infringement lawsuit are numerous, but below are generic steps your attorney will take when defending the claims against you.

1) FILE AN ANSWER TO THE COMPLAINT. INCLUDE DEFENSES, COUNTERCLAIMS.
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2) MEET AND GREET; COURT WILL HOLD A CASE MANAGEMENT MEETING TO HANDLE PRELIMINARY ISSUES AND SET DATES FOR DISCOVERY DEADLINES.
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3) EACH PARTY CONDUCTS DISCOVERY TO DEVELOP THEIR CASE. THIS INCLUDES DEPOSITIONS, INTERROGATORIES, ETC.

In this step, as a named defendant in the case, the plaintiff attorney will likely try to get you to come to their office for a deposition where you will be answering questions under oath. It is also here where they will subpoena your computers, hard drives, and electronic devices to have their forensics expert review the drives for evidence that you were the downloader.
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In this deposition, they will not only be looking to prove that you did the download, but they will be trying to ascertain whether there were anyone else who had access to your internet connection. Thus, if you claimed that you did not do the download, but your sister did, this will be asked about during the deposition.

4) ASSUMING THERE WERE NO ADMISSIONS OF GUILT IN THE DISCOVERY, YOUR ATTORNEY WILL FILE A SUMMARY JUDGEMENT MOTION. THIS WILL BE DISPUTED.

A summary judgement motion is a quick way to end a case after discovery if the plaintiff attorney realizes that they have no evidence against you. The problem is that they will probably figure this out before you, and they will dismiss you from the lawsuit in a way that precludes you from asking for your attorney fees from the other side. This is unfair, but it happens (and we have a way around it to lock the plaintiff attorneys into the lawsuit).

5) IF SUMMARY JUDGEMENT IS DENIED, CASE GOES TO TRIAL. VERY OFTEN IT IS SETTLED AT THIS POINT (IF NOT DURING OR IMMEDIATELY AFTER DISCOVERY) BECAUSE THE PLAINTIFF ATTORNEYS DO NOT WANT TO GO TO TRIAL.

IN SUM, AND ABOUT OUR FIRM.

In summary, copyright infringement lawsuits sound more scary than they actually are. The steps to be taken in a copyright infringement case are similar to the steps taken in any federal case. The federal rules and procedures are the same between one federal court to another, and with some minor differences, your attorney should be able to navigate through settlement negotiations, discovery, and ultimately ending the case hopefully in a way that minimizes the damages to you and keeps you from paying any money to them.
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[FOR IMMEDIATE CONTACT WITH AN ATTORNEY: To set up a free consultation to speak to an attorney about your Malibu Media, LLC (“X-Art”) lawsuit & ISP subpoena, click here. Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.]

WHY DECIDE TO RETAIN THE CASHMAN LAW FIRM

The Cashman Law Firm, PLLC is a solo attorney practice with a peer-to-peer approach to serving you, our client. We are growing a network of intellectual property attorneys budding from Cashman IP™ into other firms who work together under the Cashman IP™ name, giving you unparalleled service. The owner of our law firm was trained as a patent litigator to work in the federal courts rather than working as a ‘bread-and-butter’ state law attorney.

We begin protecting your interests before you even become our client. As soon as a case is filed, we begin tracking that case and communicating about that case on the TorrentLawyer™ blog. We analyze who each ‘copyright troll’ attorney is, what he has filed before for other copyright holders, what his proclivities are, and which entity is likely paying his bills. We do this to ascertain what strategy he will likely be implementing in prosecuting the bittorrent case. We also search for connections to determine whether there is a link between his client (the copyright holder) and other copyright holders or entities to determine if there is a divergence between what he is sharing with the court and what we have already learned about the other copyright holders. We do this so that we can identify weaknesses in the plaintiff’s case, and to determine whether the plaintiff attorney is lying to a judge for a particular reason (e.g., perhaps the judge is hostile to ‘copyright troll’ infringement cases brought by serial filers).
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Then when we speak to an accused defendant on a free consultation that we provide through the Genbook provider, we take that defendant through the steps of 1) analyzing the case, 2) reviewing the potential damages given the circumstances, 3) faithfully reviewing each option with the accused defendant given their particular circumstances, and we do this for free as “free legal assistance,” often spending an hour or more with accused defendants without the intention that they ever become clients.

I have literally thousands of people who our firm has helped this way. For this reason, you should feel secure that when you hire a Cashman Law Firm, PLLC attorney, you are hiring an attorney who is not only plugged into the law (something any attorney can do), but the specific environmental factors which can affect your case, your strategy, your options, and your outcome.

Next Step: Schedule a Consultation

Follow the three steps below to begin working with a Cashman Law Firm, PLLC attorney:

1. Schedule a phone appointment to speak to an attorney about your matter.

2. Get, sign, and return retainer agreement.

3. Sit back, relax, and let us work on your behalf to get you the results you need.

After scheduling your appointment online, you will be contacted by phone at the specified date and time by a Cashman Law Firm, PLLC attorney.

THE CASHMAN IP PEER-TO-PEER™ AND ARSENAL ON DEMAND™ COPYRIGHT LITIGATION STRATEGY

And, with our next generation Peer-To-Peer litigation™ model and our Arsenal On Demand™, you can feel secure that with Cashman IP™, when companies step forward and decide to accuse you of copyright infringement (and if you are a bittorrent user, eventually they usually will, often without checking to see whether you downloaded the complete copyrighted file, or whether you merely clicked on a bittorrent link), our growing arsenal of IP litigation attorneys and law firms in our network will be ready, able, and willing to step up and meet the company’s lawyers face-to-face to handle every motion, every discovery request, and to respond to every litigation trick and maneuver which are commonly thrown at a small litigation firm with the intent of flooding the attorneys with so much work that they are crippled and unable to properly defend you and your interests. The Cashman Law Firm™ respects and honors the fiduciary duty we owe to our clients and thus we are teaming up with attorneys from other IP Groups and law firms to provide for you an Arsenal On Demand™ to protect your patent from those who infringe it.

WHY WE ARE DIFFERENT FROM THE TRADITIONAL LAW FIRM

“We begin working for you before you even become our client.” – Rob Cashman, Owner of the Cashman Law Firm, PLLC and author of the TorrentLawyer Blog

We research the background and abilities of each ‘copyright troll’ attorney based on cases he has filed in the past. From this, we determine his likely strategy, and we learn what he is looking to accomplish on behalf of his client.

We mine for connections to determine whether there is an undisclosed link between the copyright suing you and other copyright holders which we can use to gain leverage in a negotiation, or even to cause a dismissal of the lawsuit.
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Then, once you have taken the steps to educate yourselves by reading the relevant articles on the TorrentLawyer.com blog, we provide a free consultation that we provide through the Genbook provider.

In that consultation, not only do we share what we know about your copyright holder, but with a friendly, polite, and conversational tone, we will help you understand your case, where you are in that case, and we will walk down various pathways on how you can approach it. Some ways include you hiring us as your attorney, other pathways will teach you how to do it on your own.

We will never threaten you, scare you, nor will we ever exaggerate the likelihood of one outcome over another. Our Cashman Law Firm has been in operation since 2010, and we have practiced in this area we opened our doors. In the past seven years, we have written 200+ in depth and thoughtful articles on the TorrentLawyer site, and we have had over 1 Million visitors to our educational side. Lastly, we have spent literally thousands of hours speaking to accused defendants such as yourself, often spending an hour or more without the need that they ever become clients.

We hope our services will give you the lasting confidence that we will look to protect your interests from the moment you receive a subpoena notice from your ISP, throughout the copyright infringement actions, all the way until you are dismissed from the case or the case otherwise terminates. Click the “booknow” button below to schedule an appointment with a Cashman Law Firm attorney in order to book our free services online.

Next Step: Schedule a Consultation

Follow the three steps below to begin working with a Cashman Law Firm, PLLC attorney:

1. Schedule a phone appointment to speak to an attorney about your matter.

2. Get, sign, and return retainer agreement.

3. Sit back, relax, and let us work on your behalf to get you the results you need.

After scheduling your appointment online, you will be contacted by phone at the specified date and time by a Cashman Law Firm, PLLC attorney.

  What else can you tell me about the Malibu Media cases?

The best way to learn about Malibu Media, LLC is to read what happened to them as it happened.  The list of stories below (in the order I listed them) tell the Malibu Media story in a way that you will understand them.

• “Malibu Media, LLC almost went out of business in April, 2016,” on 12/21/2016
• “Many Malibu Media, LLC lawyers defected; some lawyers remained,” on 3/13/2017
• “Which Lipscomb attorneys stayed with Malibu Media, LLC?” on 3/13/2017
• “Malibu Media, LLC stops filing copyrights, but they continue filming adult videos… why?,” on 5/10/2017
• “Malibu Media, LLC cases are currently facing hard scrutiny in California.” on 12/23/2016
• “Judge forces Malibu Media to reveal the accuracy of their geolocation technology,” on 5/10/2017
• “Malibu targets the wealthy in their geolocation tracking.” on 6/4/2013
• “Confirmed: Malibu Media invests $400 filing fees @$20K/month” on 3/13/2017
•    – “(and how I initially figured out they were on a $20K/mo filing fee budget),” on 12/23/2016
• “What are the X-Art adult movies Malibu Media owns? (NSFW),” on 5/5/2017
• “How the Cashman Law Firm, PLLC tracks Malibu’s movements,” on 5/4/2017
• “How certain defense attorneys are trying to profit from Malibu’s cases (unethically), ” on 3/29/2017
• “Malibu Media anonymous settlement, a misnomer,” on 7/23/2017
• “Is Malibu Media’s Settlement Extortion Scheme Profitable?,” on 12/22/2016
• “The ‘Bellwether’ Trial – The ONLY Malibu Media, LLC case to EVER go to trial,” on 6/12/2013
• “When Malibu First Started Suing ONE John Doe Defendant per Case,” on 3/7/2013

And obviously if you have gotten this far, you probably realized that you should hire an attorney. CONTACT US.

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FOR IMMEDIATE CONTACT AN ATTORNEY: To set up a free consultation to speak to an attorney about your matter, click here.  Lastly, please feel free to e-mail me at info [at] cashmanlawfirm.com, or call 713-364-3476 to speak to me now about your case (I do prefer you read the articles first), or to get your questions answered.

CONTACT FORM: Alternatively, sometimes people just like to contact me using one of these forms.  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.

CASHMAN LAW FIRM, PLLC
10101 Fondren Road, Suite 452, Houston, TX 77096
Tel: 713-364-3476
Fax: 281-764-8744
info [at] cashmanlawfirm.com

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