Linked by Thom Holwerda on Sun 28th Nov 2010 23:22 UTC
Legal We've had a bit of a copyrightesque weekend here on OSNews, so it seems only fitting to end this Sunday with yet another story on this subject. This one isn't so much anger-inducing as much as it is what?-inducing - you'll either laugh or cry. It basically comes down to this: a smart lawyer is selling self-help packages to aid victims of the mass-P2P lawsuits in the US, and now the media companies behind those lawsuits are suing this lawyer... For causing them damage.
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rexstuff
Member since:
2007-04-06

Ok, so just so we're clear here, you are saying that Motions to Quash do NOT work, but motions to dismiss based on personal jurisdiction have been successful? I think we're in agreement on this.

However. Mr Syfert's form package includes both a Motion to Quash (which seems to be useless) and a Motion to Dismiss for lack of personal jurisdiction (which seems somewhat effective). Yet in your original post you claim that Mr Syfert's forms are not effective.

Can I get a clear answer from you: in your opinion, while Mr Syfert's form to move to quash is useless, is the motion to dismiss form worthwhile?

Let's not throw out the baby with the bathwater.

(BTW thank your for your patience and helpful attitude thus far)

Reply Parent Score: 2

CashmanLawFirm.com Member since:
2010-11-29

Ok, so just so we're clear here, you are saying that Motions to Quash do NOT work, but motions to dismiss based on personal jurisdiction have been successful? I think we're in agreement on this.

...Can I get a clear answer from you: in your opinion, while Mr Syfert's form to move to quash is useless, is the motion to dismiss form worthwhile?...


Good morning, and sorry for the brief reply. The arguments you'll find for a motion to quash and motion to dismiss are VALID arguments. The issue is that the plaintiff attorney (DGW) is playing semantic games with the law which is where us attorneys come in. They are saying that a defendant does not have standing to file a motion to quash / motion to dismiss because they have NOT YET BEEN NAMED in the lawsuit; only their IP address has been named (and a letter from an ISP does not constitute service of process, notice, or any jurisdictional elements necessary to make you a defendant in the case). Thus, the methods employed so far have FAILED because the law so far has failed.

In short, read my blog (http://cyberlawy3r.wordpress.com) since I go into these issues in detail.

Also, if you read attorney Syfert's disclaimers on his form -- he even recommends getting an attorney rather than blindly using the forms, because there are issues of procedural law (e.g., who to serve, what the document must look like to conform to local court rules, etc. that confounds even us attorneys who know what we are doing.)

I cannot say this strongly enough. Being a defendant on a copyright infringement case is nothing like traffic court. There is NO clear silver bullet and so hiring an attorney who will protect you against whatever is thrown at you is the answer. A form does not make a phone call to the court or to plaintiffs on other side, nor does it answer a demand letter or draft a response from the court or opposing attorneys when they send documentation or make threatening phone calls soliciting that you pay $2500 in the next three days regardless of whether you are guilty, or else it they will settle for no less than $7500, citing only one example.

In short, as you can see -- the question is not whether Mr. Syfert's forms are valid or not, but realizing that the game the opposing side is playing is not a procedural court case, but a scheme to elicit mass settlement payments before even going to court.

PS - If they fail, and even if you succeed in quashing (considering the case that everything went as it should), they can always file and sue you in the proper jurisdiction (e.g., your state) and go after statutory damages. So far they have not gone this route, but they have been threatening doing this from the beginning if they are unsuccessful in their settlement attempts. My opinion is that this is difficult for them to do (can you imagine filing and managing 16,000 lawsuits?), but they can start gearing up and hiring attorneys for this purpose. They have already started hiring small family law bulldog lawyers to handle cases in bunches of 100-200 defendants per firm. There's nothing to say this is not in the cards. But all we can do is defend one-by-one, one lawsuit at a time with the same defenses as applicable to the individual accused downloader.

I've seeded the torrents containing the court cases, but I must take the computer offline until tonight. I will seed again tonight.

Reply Parent Score: 1

bornagainenguin Member since:
2005-08-07

CashmanLawFirm.com posted...

In short, as you can see -- the question is not whether Mr. Syfert's forms are valid or not, but realizing that the game the opposing side is playing is not a procedural court case, but a scheme to elicit mass settlement payments before even going to court.


My understanding is that Syfert's forms aren't so much about defeating the court case so much as they are about an inexpensive way to ramp up the costs of these lawsuits on the part of the MAFIAA and further destroy the profitability of their new "sue random people and hope for danegeld" business model. The more work these lawyers have to do, the more they have to think about each individual case, file papers, etc the less money they get to keep.

In short this is a cynical attempt to drive up the cost of doing business. Anyone explicitly named in a lawsuit would be better off with a real lawyer, this is just a method of letting the MAFIAA know they should cut bait and seek someone else who won't fight them every step of the way. Better pickings that way.

--bornagainpenguin

Edited 2010-11-30 21:15 UTC

Reply Parent Score: 2