Perhaps naive… but in a case where it is so plain that there is no case to answer, what is the rationale behind hiring lawyers rather than simply filing court documents yourself if they _do_ sue? The copyright troll was looking to make money: shutting down your site didn’t do anything for them — it was likely just a negotiating tactic that went awry when you called their bluff (actually shut down the site).
The fact that we ask this question leads us to asking, “Who is the best person to answer the question of whether it’s a good idea to file the documents yourself, and if so, how things are likely to go over the next ___ years of litigation?”
And the answer is... A LAWYER EXPERIENCED IN COPYRIGHT AND INTELLECTUAL PROPERTY LITIGATION.
That answers your question for me. In cases roughly similar to this, I have begun with a lawyer. Yes, there are two times I recall where they said, “Do it yourself, but watch out for X or Y, and call me back if Z.” That alone justified what I was paying for the first proper, clock is ticking, consultation.
What happens after the first consultation would depend upon the case.
IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you.
When hiring one of the best attorneys to defend the type of action brought I had to be very clear about what they were to do in between our calls (ask the third party to agree to drop it if we get plaintiff to drop it, ask plaintiff these questions, if they don’t do X we will do Y, offer them Z).
It was also important to stop them from taking pointless actions that would have cost tons of hours: do not read the discovery (hundreds of pages of details that wouldn’t change things), do not read the third party’s ToS looking for a loophole (another ~50 pages) as the company likely had already spent hundreds of thousands writing it and millions testing it in court.
We would have done those things if necessary but they didn’t need to be done simultaneously and the settlement attempts paid off immediately. It was not an IP case and I don’t think it had merit, but it would have likely cost at least a little more (or possibly much, much more) just to find out and I wasn’t interested in finding out. It was not a scenario where some floodgates could be opened if we settled.
> IMO it’s also very important to be incredibly hands-on, to manage your attorney after getting them to explain the case to you.
Wow. So now you almost certainly have to have a lawyer because of byzantine 'tested' language and you have to nanny them to avoid getting soaked for billable hours!?
A velvet glove around what you just said is that it’s like you are a product owner, and the lawyer is a pure engineer.
They are the expert in implementing the business outcomes you want, but you and only you know all the context required to take the tradeoffs your lawyer articulates, and decide which tradeoffs to make.
Federal civil courts aren't a small claims court. The rules aren't easily understood and are full of pitfalls that trip up even experienced litigators. Your answer to a complaint needs to address every single allegation AND raise all affirmative defenses--or they could be waived.
You are pretty likely to foot fault and end up just putting yourself in a worse negotiating position.
Trolls already have pre-made complaints, discovery requests, etc. already lined up. You'll have to work a long time to do what they can in a couple hours.
Sending back a letter on a lawyer's letterhead is also a negotiating tactic. It's probably what I'd have done as well. Emailing back from joe_blow_blog_157@gmail doesn't send the same signal as "deal with my lawyer; we think we're right; what's your next move?"
If parent was incorporated and the corporation was sued they cannot defend the corporation without a lawyer. They can defend themselves as individuals without a lawyer if sued individually.
Of course the copyright troll may never have sued. But your lawyer will happily charge an hourly rate to repeatedly write letters saying "If you sue us we will win!"
I imagine the theory is unless the CEO owns 100% percent of his company it's not his company. He's engaged in unauthorized practice of law and screwing over his investors since he has no idea how to practice law. There's also the fact that lawyers have background checks before getting a law license, and if a CEO could practice law without a license it would potentially be a big loophole for fraudsters and other known criminals who commit fraud to be able to practice law.
Even if the CEO owns 100% of the corporation, it's still a separate entity. That's one of the benefits of incorporating - when someone sues the corporation, they can go after its assets, but not the CEO's.
But that means the corporation gets treated like a separate person. And just like you can't represent your friend in court (unless you're a lawyer), you also can't represent your corporation.
because (IIRC) if you win and you get a SLAPP judgement against your harasser, then you be awarded a penalty. Depends on jurisdiction, of course. Possibly not in federal.
