Of course the headline here seems like common sense, but what’s surprising is that many attorneys have trouble with this bit of wisdom. As surprising as it may be, understanding why practicing attorneys have trouble controlling their aggressive tendencies is not difficult when you think about it. The problem is, when you have to spend 80% of your time dealing with deadbeats and scam artists, you end up in a near-permanent state of cynicism. Hell — in a lot of instances, it helps to be a bit of a dick. This, of course, is the motto of any self-respecting alpha.
Good attorneys, however, know how and when to turn off the bloodlust. The best attorneys manage to avoid it altogether. The moment you start to get emotional about going after that one defendant, the moment it becomes personal for you, there is a real danger that you’re going to accidentally misdirect that energy. If you lose the big picture in a haze of red, bad things can start to happen. Recent events in the heated debate over copyright enforcement serve as proof.
Larry Flynt Publications (LFP) just parted ways with Evan Stone, an attorney that was hired to pursue the hundreds of BitTorrent users who are illegally trading copies of one of the company’s recent video titles, This Ain’t Avatar XXX. When Stone wanted to press harder than his client, not surprisingly he got the boot. It turns out that when LFP was unwilling to bite the hand of Time Warner Cable, an ISP dragging its heels on turning over customer information tied to IP addresses used to share the movie, Stone became unhappy with LFP’s intestinal fortitude.
According to LFP President Michael Klein . . . the shifting focus from the alleged pirates to putting pressure on the cable companies was not a strategy that appealed to the iconic adult company, which has a television division and continuing global ambitions that require it to be a partner rather than an antagonist with companies like Time Warner. . . . Klein said that as much as LFP is determined to maintain a professional relationship with cable operators, it was ultimately their frustration with Stone’s aggressive PR tactics that led them to the decision to end the contract with him.
“He wanted us to put pressure on the cable operators, but it’s not our goal to go after them,” Klein told AVN. “We want to look at ways to go after pirates, and we thought this strategy might work out, but the reason why we terminated with Stone was because of what we considered to be his unprofessional tactics.” (source)
Even though the company was happy to quietly let him go, Stone took the more douchey path of announcing his break with LFP to the press.
Plenty of attorneys argue — and they’re not necessarily wrong — that being successful requires adopting the client’s problems as if they were the attorney’s own. However, very few businesses become successful by playing hardball with everyone the way an attorney would. (Similarly, any company that is always as cautious as their attorney advises will likely fail to excel.) The problem comes when your level of tenacity goes beyond the client’s, and fighting the problem becomes for your benefit rather than theirs. This is almost always a recipe for disaster, especially considering it can require superhuman empathic skills to know where the line is sometimes. Unfortunately, there’s no law school course that will give you the paracortex of a Betazoid, so you’ll have to rely on your own douchetastic meter to figure out when you’ve gone too far. There’s no surefire way to navigate this conundrum, but staying away from brash and overly aggressive tactics will help, and that’s a good practice in any endeavor.
Do mine eyes deceive me? You’ve been reading Roissy?
Also, TWC was one of the big players in the series of decisions from the N.D.W.V. severing defendants from the porn piracy suits there. If you’re into piracy, they’re the ISP to have (which makes it odd that LFP is partnering with them, but they might be more open than VZW, Cox and Comcast – which is now in bed with NBC – to working with him on content distribution). As to those decisions, which may come to bear on Mr. Stone as well, I think they’re a punishment for sloppy joinder rather than a death knell for the mass infringement model. The dictum about defendants having varying defenses makes little sense – that’s true of virtually any tort involving multiple defendants. While swinging in the other direction and launching individual suits in one jurisdiction (like RIghthaven) and in the infringer’s home jurisdiction (a la the RIAA) probably is unnecessary, it’s important to get people who infringed copyright in the same way, using the same instrumentality, more or less in concert – such as by using the same torrent.