Prepare for the emotional and financial prices you could pay while suing or defending work against copyright infringement. How protecting your intellectual property works. Gain helpful tips to keep your sanity and learn what to avoid. Negotiating tools.
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Notes from Episode 013 of The Copyright & Intellectual Property Podcast
We are going to talk about BASIC psychology in a lawsuit & helpful tips to keep your sanity. I’ll jump between negotiating and talking about litigation because they go hand in hand and play out until there is a resolution.
Your take away should include a general understanding of;
- How you can negotiate or at least be open to dialogue.
- Actual cost of litigation and the real prices you could pay.
- Why your typical lawsuit should be a last resort.
- Why your goal should be to get out as fast as possible.
- Techniques to help you through.
- What it means to go all in.
- Toward the end I will provide real examples from client cases.
If the situation calls for it, go for it. But most situations people think call for a lawsuit, may not.
Please do not think that this advice is intended to stop you from making any move. I was recently accused of sounding defeatist in a podcast where I was talking about what you could do when content is stolen. So please hear me, if another party needs to go a few rounds or a full match, bring it. I will gladly walk you in a to a mine field and watch you blow yourself up. I may even take pictures for my memory book and remind you on holidays with a card. Id rather not have to expend that energy but know that for me that is like going to the gym. I feel great, energized, and I celebrate. Most don’t like or want that level of confrontation. I shoot for a win-win but will party just the same in a win-lose.
Typically, people don’t like what they perceive as confrontation so it can seem easier to outsource all elements of the conflict to a professional. But that professional may want to milk you for a bit. Lawsuits are easy to jump to and hard to jump out of. Negotiations can be hard in and easy out. Your professional may not want to milk you but the other sides might and that will cost you.
Be pragmatic. BE PREPARED, YOU ARE GOING TO WAR
Lawsuit are a GREAT tool. We use them for a host of tactical reasons. But like any tool, you need to know how to use it or you will hurt yourself.
I have been involved in over 500 intellectual property cases. I have been involved in many more disputes and disagreements. In my early days I thought that lawsuits were the first thing we should jump into. After years of hands on experience I can tell you with a level of certainty that for most people it should be a last resort. Its costly, not only financially but for many, there is a real physical and mental cost to pay.
Stay away from quick throws like the words, “I am going to sue you,”…unless you are prepared to have a case filed in a courthouse within 10 days. If you say “I am going to sue you” and you do not do so in a timely fashion or at all, you have given up any credibility you had AND to people like me, you have shown your hand. I will purposefully call you out to use that as a tool to try and flip a negotiation in our favor.
My most common response to they said, “I am going to sue you” is, great, ask them by when?
Am I looking to get our client into a lawsuit…no…but if the other side is serious it is a great way to find out?
Some may suggest that is a little brazen but look, I am not looking to delay a filing AND I am really calling out the person who says it. I know on an intimate level what is involved with a protracted lawsuit. I am psychologically geared up for it. If I have done my job well, my clients are geared up for it. After this podcast hopefully you will have a theoretical idea of what that looks like and feels like as well and some tools to help you through.
When situations start brewing, I like to learn everything I can about the team on the other side before you sit down or return a call.
AIM FOR A WIN – WIN BUT BE PREPARED TO FIGHT A WAR TO GET THERE…OR NOT. USE TACTICS TO YOUR ADVANTAGE OR BE AWARE OF THEM SO THEY ARE NOT USED ON YOU.
ALWAYS BE OPEN TO TALKING.
Some may think they are not comfortable with negotiations but remember life is a constant stream of negotiations. Being a good negotiator doesn’t mean you are hard ass. Quite the opposite. There is a difference between applying pressure and being an ass for the sake of being an ass. I’m not looking for ego strokes, I am working to produce a successful outcome.
Some litigators (not all) like dragging situations on so they can bill you for the time. I like getting what we need and getting out and since I may have to deal with someone again, leaving our relationship as nice as possible.
I may not like you and I could give you a list of pirates who don’t like me and what I do but they do answer my emails and there is a level of mutual respect. I would suggest that is only because of the way I treated them as we attempted to seek a resolution.
Herb Cohen is a negotiating expert who in 1962 coined the term WIN-WIN. Mr. Cohen is masterful. He has successfully negotiated everything from large mergers to the release of hostages held captive by the Palestinian Liberation Front on the cruise ship Achille Lauro. That 80’s negotiation earned him the title of World’s Greatest Negotiator.
My point is that he has seen and experienced enough to have a 10-mile-high view on how to deal with situations. He brings a basic philosophy to his negotiations that I adopted…that is, if you treat people nice, they will treat you nice. They may not always treat you nice, but you can still treat people nice. Listen to the other person, respect their position, and ask yourself how you can come to terms. Keep your demeanor amicable, and when necessary, admit to what he calls “calculated incompetence.” Say, “I don’t know” when you don’t know something. There is real value in letting another explain something to you.
In WIN- WIN Negotiating the goal is to bargain fairly and openly so that everyone’s needs and desires are satisfied.
I would suggest that this definition can be flexed as needed meaning you can be open with some items and use tactics while also being fair or reasonable.
A WIN-WIN in a internet piracy dispute could look like a pirate enterprise not using your tradenames in their searches or ad buys. They paid an agreed upon amount to satisfy the infringements that took place. They are no longer using your content or they are using a portion with an up sale on an affiliate link to your full price items. Ideally there is a written agreement with all of the terms that they will follow and a clause for any future dispute resolution.
Everyone knows their role and what happens if they step out. Win-Win done.
Another scenario could be they took your content down, didn’t reply to any correspondence but haven’t put the content back up. You didn’t get paid however; they aren’t stealing your content anymore. Win-Win done for now.
This is not always achievable right away. Remember this is like Poker and Poker is a game of skill. You play the player. I am not claiming to be master negotiator but I can negotiate.
Some people like to play games for the sake of playing games. They need to play a game in order to feel satisfied.
As it relates to cases, as it relates to your attempt to bring about resolution, realize that some people, the other side, the other company, the emotions that your dealing with may require you to play a little Poker or use some techniques. There is huge value in it because I have sat in negotiations with people who unless they feel like they are getting a deal they just won’t settle. Does that mean that you have to not get to where you want to be, NO. That just means that your approach when you sense that needs to be different. It costs you nothing to tee up your offer like it’s a deal. You need to realize in that moment that you are playing poker and you are negotiating for a win-win without it being at your expense because by definition that’s a lose-win.
What is effective? I think it works a little differently for everyone. I believe that due to a cultural upbringing we are pre disposed to go to certain responses or take certain positions. The initial ‘come from’ may be driven by their culture. This isn’t based on race its cultural differences. I was raised in Los Angeles and influenced by New York and London and as a result of … I have certain come form’s and certain lingo. I use the word dude a lot. There are ways I approach situations as a result. I have a pre disposition to think and act a certain way because of my childhood and life experiences.
Human experiences and lessons shape core responses.
Culturally here is the way I have seen it play out. This is not intended to offend nor is it an absolute but this is how I have seen it play out more than once. So, I think it is valuable to be aware of.
If you are negotiating with someone from Eastern Europe, they don’t necessarily see cultural right and wrong as it relates to intellectual property theft. They see it as a method by which they are going to make money and the rest of it is inconsequential. Now that is important to understand…the rest of it is inconsequential. More often than not, they do not appear to give a shit about the fact you spent time, money, resources, energy creating your work and trying marketing it. There only goal was to make money with it. You could say, yea that’s true for all of the thieves yes BUT and here is a big BUT on that. Eastern Europeans think that when you call them out all you’re really doing is stopping them from making money and who are you to do that? So, realize that going in. Again, not saying when you deal with all Eastern Europeans but you should look at it from that perspective.
Where are they from? How could they think?
Israeli’s, similar situation. They will dig in and fight you to the end…they like to be pot committed. Understand that, they need a deal and need to feel like they beat you. If not, they will stay pot committed. Position yourself in such a way that when you are explaining a situation or negotiating it’s as easy as saying, you know what if could settle this right now, I would take 10% off or 15% off and we can finish this off right now.
That works by the way for most people in the United States as well. Again, this is not to offend it’s just a notice I have had. Canadians very nice people, two main types. Those who model US Behavior and those who model behaviors you see in France and Germany. So again, positioned and willing to put up a fight but they will only fight for so long and so hard. Unless they really are from somewhere else. If they are from Canada and are a couple of generations deep, the fight is only for so long. French Canada will fight you longer. That doesn’t mean you should dig in with them that just means that after a couple rounds, they may be softened up enough to have an actual conversation where they might not have been previously willing.
The message and theme will be the same. Try and work out a deal. Use tactics but you don’t have to use them for evil.
You can use negotiating tactics to manipulate another. Some may see this as bad. There are two definitions. Manipulation: the action of manipulating something in a skillful manner. The second definition is the action of manipulating someone in a clever or unscrupulous way. I’m sticking with the first, skillful manner.
Look, life is all about manipulation. I am sure at some point you convinced someone to be with you, to go out to dinner, to give you a job, someone else convinced you to give them a job. If you have ever had sex in your life, I’m pretty sure that you said some things and they said some things and somehow that may have not been totally truthful but it was enough that the mission was accomplished for all involved.
Win-Win.
Use THAT as an example because that was a negotiating tactic you utilized to get what you wanted. You were on the giving or receiving end of something. Hopefully if it worked out and both sides were satisfied at the end of that exchange.
I use this type of example when someone is in that state, you are dealing with raw emotion. Come from a place of understanding. Ask yourself, what would it take for me to get what I need? If you are in a situation and they are just not seeing it your way…what would it take for them to sleep with you? How can you best seduce them while not lying or giving everything over?
As odd as that may sound, that may neutralize some of your energy right away and change the way that you approach the situation. It can cause a shift.
I regularly thank, who I consider thieves, for talking to me. I thank them for every step we take as we move through a negotiation. Am I doing that to be condescending? Absolutely not. I’m thankful for their choice to give me what it is or do what it is that I wanted. If nothing else I am talking to them for talking to me and being a decent human. At least engaging in conversation because I KNOW from that resolution can come.
It may take a while to get there and that is where a lawsuit can help push that objective to a goal.
READY FOR A LAWSUIT? YOU ARE GOING TO WAR
No one likes to be sued. Most don’t like to sue others. It’s exhausting. It can quite easily get very expensive…fast. It doesn’t always make sense to both sides.
Going to war does not mean you have to be mean or not empathetic.
Your goal is to bend will not necessarily kill anyone.
In our culture many are taught that if you are involved in a lawsuit then you must have done something wrong. Many clients over the years have felt dirty or as if they themselves had done something wrong by being involved in a lawsuit even when they were the plaintiffs defending their rights and not the defendants. I would suggest that you blow that myth up. If you have no other choice to settle a matter why not use a Judge or a jury or the tools the system, the law, provides you to garner a solution. Ultimately you are looking for satisfaction. Not annihilation…satisfaction. It may not ultimately be all you hoped for but it may be what you needed to end the issue.
Try to stay neutral with someone on the other side so that you can leave the possibility of settlement open. They may not be happy about a lawsuit but that doesn’t mean you shouldn’t be open to discussions no matter how heated the attorneys or sides appear to be.
I remember as a kid there was movie with Matthew Broderick called War Games. Broderick’s character David initially unbeknownst to him hacks into the US Governments computer that runs war scenarios to figure out the best way to fight and win a nuclear war. The computer also controls the US nuclear arsenal. David, thinking he is playing a video game inadvertently starts a cycle that almost leads to nuclear war with Russia. The computer he hacked into was purportedly somewhat intelligent. In the beginning it presented him with a list of games. The line that became famous was the computer talking to David, it asked, “How about a nice game of chess? To which David replies, “No, let’s play Global Thermonuclear War.” That kicks off what almost brings us to World War 3. Towards the end of the movie to try and stop the computer from launching missiles, they program it to play tic-tac-toe with itself, a virtually unwinnable game that puts players into a spin cycle. The computer overheats, theoretically exhausting itself. Then reboots. Upon reboot it now supposedly has a fresh take. At this point now the end of the movie the computer says nuclear war is, “a strange game” in which, “the only winning move is not to play.” And then the computer again proposes that they play, “a nice game of chess.” Everyone cheers and the credits roll. All live to have another day.
This sums up what can easily occur in a litigation strategy or I call a case.
Good intentions,
quick decisions that probably required more homework first,
dangerous long-term consequences,
emotional spin cycles, escalating cost cycles
to maybe get to an end where everyone decides that what is being proposed to each other may be worth taking.
Or maybe you just keep fighting, appealing, pushing forward until one is maybe destroyed and the other prevails. At this point, if you push too long against an opponent who is not of means, you have bankrupted them and now there is nothing to collect.
Its why when we decide to dig in, I make sure the other side has money or assets we can seize and I know how and where to collect it.
The ideal move in any situation is to settle it out and not have to go to court. Unfortunately, that isn’t always the case.
My point is Lawsuits are exhausting, even if you can compartmentalize, they all bring emotional elements.
YOU SHOULD BE UPSET
If the content at issue was your music, or course, or art, or photograph, or video, it came from you. It carries a personal level of attachment and that carries an emotion.
When your individual work gets stolen and used, you are going to feel violated. You have a right to. You should be pissed. But it’s what you do to manage those emotions that will carry you to a better place.
Being mentally prepared is more important than anything. Good litigators, experienced attorneys, consultants, advisors, managers, talent agents they are masterful at managing expectations and weathering the storms with you but you also need to be prepared.
There are highs and lows, levels of frustration, and what was famously presented by former Secretary of Defense Donald Rumsfeld called, “known unknowns.” The term was purportedly coined by NASA Administrator William Graham. It refers to risks you are aware of that may or may not or could occur. Risks you are aware of that may or may not or could occur. Known unknowns. As Rumsfeld put it, “There are things we do not know we don’t know.” I would add that when those things show up, you will be tested.
TECHNIQUES TO CALM THE NOISE
I too go through the highs and lows and levels of frustration. I think I have gotten better at dealing with emotional swings. I am far from perfect. I do attribute my ability to better normalize my reactions to being able to see what is possible. I can play the possible scenarios out or at the very least the worst-case scenario. That satisfies my worry and eases what is otherwise uneasy.
I use what Chris Voss, former FBI Negotiator extraordinaire and author of NEVER SPLIT THE DIFFERENCE and the FBI refers to as ‘tactical empathy’ to gain a wider perspective on a situation. I use it internally to calm myself and externally to move a situation. Chris says, “Tactical Empathy is knowingly and intentionally influencing your counterpart’s emotions to make deals. It’s recognition of their perspective and articulating what you see in a strategic, even proactive manner. Especially when you don’t “like” their perspective.” Though it’s intended use is to facilitate movement in a negotiation with others, I also use it to calm self-talk. I negotiate with myself and as if I was negotiating and getting movement with the other side.
It’s a little role play.
I also use a technique called ‘Screen of the Mind’ and ‘Workshop’ to help me see a perfect end result. Screen of the Mind and Workshop is about visualization. Being able to create and see what is possible using whatever tools, people, elements, or things you need to make that a reality. Then holding that space to allow it to influence a desired outcome. If it sounds out there, it is. I know it works. I don’t know how. This may be one of the few areas in my life that I don’t need to know how.
Once I do that and feel like I have a handle on the situation, as out of control as that situation may appear to be to the outside world, I chill out. That doesn’t mean I am not proactive and working, it means I am clear and as a result more functional.
DOES IT WORK?
When the other side files responses that include statements, I know are false or are so far skewed from my truth that’s a flash point. But I don’t let that feeling drive me.
This ability when honed can extend to all areas of your life. You can apply what I just shared to any relationships or situation, they invariably on some level play out the same.
You have to have a stomach for litigation.
The best way to even scratch that surface is to know what’s involved. Here me,
You have to be prepared to do whatever it takes for as long as it takes to get satisfaction while knowing that satisfaction may never come.
I am not trying to sound like a fortune cookie. I am absolutely not trying to talk you out of suing another. Let me be clear.
I believe that lawsuits are the perfect tool to set and run a clock on a company, person, or persons to affect a desired result.
Here is a slice of what I mean. When you file and serve a lawsuit on another, they have a certain amount of time to answer. This means they need to get an attorney and reply. Then you respond to their reply, and it goes on and I will cover that in a bit. The point is that there is a clock of sorts running now because they have to answer. There are consequences for no action. You just raised the pressure. All of the threats that may have occurred or doubt, end for now. Jokes are over, its game day.
You now set as deadline and the pressure on them. Your opponent now needs to spend time and resources on defending a position.
This pendulum swings both ways.
In many instances upon getting served or within six months of getting served, we are able to facilitate a settlement. Offers we have put forth start to seem more reasonable. REMEMBER the clock is running and costs are running for both sides. They may not like the idea of settling and that’s ok.
WHAT ABOUT FEELINGS?
I care about understanding the feelings of the opposition for the sole purpose of being able to use it to my advantage. That doesn’t mean I am mean or rude. I sincerely want them to be in a better place with long term potential but that is completely up to them.
I will add that only immovable term is that we want compliance.
Why bend? Pirates, don’t typically stop pirating just because you settled with them so you might as well help them out and get yourself into a better situation with them. Get what you need and secure the future of your content. That possible outcome “of better” is up to them based on how they respond. Know that it’s still on my terms or terms I am or our clients are amenable to.
Many attorneys and others like to go for the kill. We see this play out all the time. This trade Organization shut this site down and then that site but this other one is still up and they want to shut it down. To me, that sounds like an expensive game of whack a mole. It takes no time to replicate a site. Great you shut down .com now they have a .net or .to. What does that really accomplish but headlines?
Torrent Freak recently wrote an article about a research study that was done that shared under certain conditions stolen Manga Content was helping drive sales. I would suggest that this could be applied to any content. It can absolutely drive sales. Shocking…!
Point is, unless you have a chance of physically killing them, they aren’t likely going to stop.
You have to make tough choices but they need to be measured and thought out. It can be difficult. Get creative with solutions, creative works.
I’m not a pussy cat and I am not innocent. Over the years, at times, I have had to systematically dismantle all that is good around a pirate to end them and their operation out of the courts. This has consisted of applying various levels of pressure from different areas. Cutting off ad revenue, their ability to process, forcing hosting changes, and other means. I’ve notified foreign governments of certain illegal activities by pirates in their home countries. That has resulted in some bad things happening to them. Hey, I offered an alternative, they made their life decision.
WHAT ELSE SHOULD YOU EXPECT?
IF you file a lawsuit “meaning sue someone” prepare yourself, mentally, physically, financially, spiritually, to spend at least $100,000 and be involved at times for about two years or more.
Come to terms with the fact that you may not get to the merits of a case for a year…or more or ever. That means you could spend a year or more fighting over whether a case can be heard in the US. Whether the person or company you are suing can is liable in the US.
It could take you a year or more to find out who the pirate is and who, if anyone, owns the infringing site or did the infringing act.
That in itself is frustrating because in these instances you are spending time and money just on getting to a place where you may be able to address the actual theft and use of your work.
Your case may never get to that place. A pirate could get a case kicked out for jurisdiction issues or other issues that have nothing to do with the reason why your case was filed in the first place. Sound nuts? This is why litigation is a last resort and should be played like three-dimensional chess.
THE PROCESS IS SLOW BUT IT WORKS.
This was a case we wrapped up after about two years of intense motion practice. We had spent 12 months just gathering evidence before the case was even filed. This case settled two weeks before trial in the Judge’s chambers. Our client is one of the largest California based studios. The Chairman whom I had become friends with over our years, had become personally involved and was exhausted. He had things going on in his personal life that happened to hit just as we were gearing for trial. The personal issues absolutely needed his full attention but he couldn’t let this case go. Since he wanted to be so involved, he was making himself sick. I told him that the best way I could support him was by getting him out of this case while making sure at the very least, the studio recouped costs to date. Our settlement was for significantly more but luckily, we were able to end it.
What did this require in terms of case work?
It took more years, a ton of motions back and forth, discovery, depositions, and about two hundred thousand to bring this to a settlement.
At one point we attempted a negotiation; that last about four minutes. My fault it didn’t work. It was my fault. We walked in and the pirate operator wasn’t happy that I was friendly. We all sat down, I said hello and asked how his flight was? He told me to go fuck myself, got up, and walked out. This person and I had a history. He had previously made himself clear. He was upset that I was doing this to him. That I was costing him money. That I wanted him to stop making money.
Yes, he wanted to hit me.
He was also pissed because I had turned two now former employees into witnesses who shared all in declarations. Their declarations confirmed what we knew to be true and argued in the case. The walls were closing in and that is when the caged animal really came out.
Remember when I was talking about cultural differences. Hear what he was telling me: I was responsible for this issue. This had nothing to do with the fact that he was stealing, selling, and making millions of dollars a year from pirated content.
Next came more motions and responses back and forth.
Finally, we got to a what is called a pre-trial settlement conference: THIS WAS WHERE AFTER TWO YEARS THE OTHER SIDE AGREED TO OUR TERMS AND THE SAME AMOUNT WE WANTED WHEN WE STARTED.
This required me to be humble. To let the other guy, share what he wanted to do to me. Get colorful and rude. He wanted certain terms and future limitations…especially as it may involve me, him and his company. In the end, he felt like he got a deal, got the best of me, and so what, we got exactly what we wanted.
Trial didn’t happen. If it did then it would have gone a week. One side or the other would have appealed it, that would have added a year or so and then we would have an outcome.
Last key item is KNOW that you have won or when you win, this is not the time to slow down. The situation may require you to now physically collect on that judgement.
This could start another cycle but it’s worth it. Many times, clients want to slow down or stop after the judgement. They spend vast amounts of time, money, and energy to get a successful outcome only to stop and not collect. Why, typical reason, they are punched out.
We have clients right now that are punched out sitting on multimillion-dollar judgements.
- $12.8M: Personal assets in Australia. Client doesn’t want to go to Australia.
- $5.4M: Assets in the US and Spain. Client doesn’t want to go to Spain.
Don’t let the fear get the best of your business sense. If someone has money to take, they owe you, and you have a judgment, go take it.
Remember how it felt when you realized that they stole your work. Yeah again, hold on to that feeling and get what you are owed.
If you are still here, you now have an idea of what you need to be prepped for.
As I wrap up this episode please walk away with these points:
- Your goal should be getting out of a lawsuit as fast as possible.
- You can control timetables as a plaintiff or as a defendant. If you are not controlling a timetable or looking for a way to control the timetable you are potentially losing.
- Don’t allow someone to milk you.
- Running into the fire without calling the fire department will get you burned. Meaning be prepared.
- Try to stay neutral with someone on the other side so that you can leave the possibility of settlement open at any point.
- It’s a long play.
- Make sure the other side knows you are prepared to go however long it takes.
- Make sure your case is financially viable.
- Don’t threaten litigation.
- If someone threatens you, tell them to actually sue you and stop contact until they do.
I hope that this information helps you protect your content. I’m more than happy to answer questions inside of our FREE Intellectual Property HQ Community Facebook Group.
If the podcast episode was informative or helpful to you in your endeavors, please take a moment and leave us a five-star review on iTunes.
Happy Hunting!
RECOMMENDED BOOKS:
Never Split the Difference, by Chris Voss
Negotiate This!: By Caring, but Not T-H-A-T Much by Herb Cohen
You Can Negotiate Anything, by Herb Cohen
The Man to See, by Evan Thomas. Book about legendary attorney Edward Bennet Williams who was considered one of the best trial lawyers ever to practice.
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