On this page
The two paths side by side
| Consideration | Negotiated resolution | Defending on the merits |
|---|---|---|
| Your name | Ordinarily handled through counsel and, before service, often without your identity going to the plaintiff's principals at all. Dismissal follows. | Appears on the public docket unless the court grants leave to proceed anonymously and seals identifying filings. |
| Timeline | Frequently weeks. You know in advance when it ends. | Commonly a year or more to reach summary judgment, and longer if the case does not end there. The calendar belongs to the court and to the plaintiff's pace, not to you. |
| Cost certainty | A sum certain. One negotiated figure plus a defined legal fee, both fixed in writing before you commit. When it is paid, the matter is closed and nothing further accrues. | Open ended by its nature. Fees accrue with every motion, every set of discovery requests, every deposition, and every extension the other side takes. No honest lawyer can quote you a final number at the outset, because no lawyer controls how hard the plaintiff chooses to push. |
| Burden of proof | Never tested. | Strike 3 must prove every element by a preponderance, including that you were the infringer. |
| Discovery exposure | None. | Interrogatories, requests for production, requests for admission, possible forensic inspection, and your deposition under oath. |
| Upside | Finality and confidentiality, on a date you know in advance. | Dismissal or judgment in your favor, and in the right case a fee application under 17 U.S.C. section 505. A fee award is discretionary rather than automatic, and it is not money you should count on when you budget. |
| Worst case | Bounded and known on the day you sign, because the worst case is the figure you agreed to. | Not bounded. You may prevail and still be out of pocket for your own defense, or you may lose after spending more than a resolution would have cost and face a judgment on top of it. |
| Best suited to | Defendants who need a fixed and predictable cost, defendants who want certainty and closure, and defendants whose facts are unfavorable. | Defendants who did not do it, households with multiple users, and cases where the plaintiff's proof is thin or the demand is disproportionate, where the client understands and can absorb the cost of the process. |
Doing nothing. Before identification, silence guarantees that your name is produced. After service, silence produces a default judgment enforceable by garnishment, levy, and lien. Every other choice on this page is better than that one.
The economics of litigating, stated plainly
A defense lawyer who describes litigation only in terms of its upside is not preparing you for what it is actually like. Defending a federal copyright case is a process with a floor and no ceiling, and the person who sets the pace is the plaintiff, not you.
A negotiated resolution has exactly two line items: the figure paid to the plaintiff and the fee charged to negotiate it. Both can be fixed in writing before you decide. Litigation has as many line items as the other side chooses to create.
| Stage of a defended case | What it actually involves | Who controls the cost |
|---|---|---|
| Responsive pleading | An answer with affirmative defenses, or a Rule 12 motion with supporting brief. | Largely you. This stage can be scoped and quoted. |
| Written discovery | Interrogatories, requests for production, and requests for admission, answered under oath, with objections drafted and served on deadline. | The plaintiff. It decides how many requests to serve and how aggressively to pursue them. |
| Collection and preservation | Device inventory, preservation of data, and in some matters retention of a vendor to image devices without altering them. | Mixed, and vendor fees are additional to legal fees. |
| Forensic inspection, if demanded | Negotiating an inspection protocol, examiner fees, and review of what the examination produces. | The plaintiff, whose demand triggers it. |
| Your deposition | Preparation sessions, attendance, and the transcript. | The plaintiff sets it. Preparation is not optional. |
| Summary judgment | Statements of undisputed fact, briefing, exhibits, responses, and often a reply. | Both sides, and this is ordinarily the single largest line item in the case. |
| Trial, in the rare case | Pretrial order, motions in limine, witness preparation, and trial time. | The court's calendar. This is the most expensive outcome of all. |
Winning is not the same as being made whole. A defendant who prevails on summary judgment has obtained a dismissal, not a payment. Under 17 U.S.C. section 505 a court may award a prevailing defendant costs and a reasonable attorney's fee, and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), directs courts to weigh the objective reasonableness of the losing party's position. But the award is discretionary, the amount is discretionary, collection is a separate exercise, and none of it is guaranteed. Budget the defense as though no fee award will ever arrive, and treat one as a favorable contingency rather than as a plan.
There is a second kind of uncertainty that has nothing to do with money. Litigation outcomes turn on the district, the judge assigned, the magistrate handling discovery, how a particular court reads Cobbler Nevada, and how your own testimony holds up under examination. Those variables are real, they are not fully knowable at the outset, and no competent lawyer will tell you otherwise. Settlement eliminates every one of them at once.
Resolution converts an open ended risk into a fixed, known, and final number. Litigation preserves the chance of paying the plaintiff nothing, at the price of an expense that cannot be quoted in advance and an outcome that cannot be promised. Which trade is right depends on your facts and on your tolerance for that uncertainty, and it is a decision you should make with a lawyer who has laid out both honestly.
When resolution is the right answer
- The conduct occurred and the facts will not improve. If a deposition and a forensic examination would confirm the allegations, litigating toward that deposition hands the plaintiff the element its software cannot supply. This is the clearest case for resolution, and a lawyer who tells you otherwise is not serving you.
- A fixed number is worth more to you than a chance at zero. This is the most common and most rational reason clients resolve these matters. A defense that succeeds may still cost more than the settlement would have, and it may not succeed. If you need to know the number, know it now, and be finished, resolution is the only path that delivers that.
- The disruption outweighs the number. Litigation consumes time, attention, and privacy for a year or more. Discovery obligations do not pause for your work, your travel, or your family. For many clients a negotiated figure is simply the cheaper transaction once the true cost of the process is counted, even where a defense exists.
- Confidentiality is paramount. Professional licensure, security clearance, employment, immigration status, or family circumstances can make public docket exposure the dominant concern. Resolution before naming is the most reliable way to avoid it.
- Multiple works are asserted and the registrations are clean. Exposure scales per work under 17 U.S.C. section 504(c). A clean registration record across twenty-plus works changes the risk calculus even for a defendant with a viable identity defense.
- Someone in the household did it and you know who. This is common and genuinely difficult. It is also precisely the conversation to have with a lawyer under privilege rather than to reason through alone.
When defending is the right answer
Each of the following is a genuine reason to defend rather than resolve. None of them removes the cost and uncertainty described above, and none should be acted on without a frank conversation about what the process will require of you financially and personally.
- You did not do it. There is ordinarily no good reason to pay to resolve a claim you did not incur. The plaintiff's evidence does not improve with time, and it cannot manufacture the identity element. Understand, though, that vindication has a price of its own, and that the price is not refunded unless a court exercises its discretion to award fees.
- Several people had access to the connection. Spouse, children, adult children, roommates, tenants, guests, employees, contractors. Under Cobbler Nevada, LLC v. Gonzales, 901 F.3d 1142 (9th Cir. 2018), subscriber status plus notice does not even state a claim, let alone prove one.
- The network was open, shared, or weakly secured. Default router credentials, an unsecured guest network, a shared building network, or an apartment access point within range of neighbors.
- The technical record is thin. Whether PCAP files exist for each transaction on Exhibit A, what those captures actually contain, and whether fragments of a file constitute reproduction or distribution of the work are all contestable in discovery.
- Registration dates undercut the remedy. Under 17 U.S.C. section 412, statutory damages and attorney's fees are unavailable for works not timely registered relative to the alleged infringement. That can gut the economics of the claim for those works.
- The demand is disproportionate. Where the number bears no relationship to any realistic recovery, the plaintiff's own fee exposure under section 505 and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), becomes a live consideration for it, not only for you.
We will tell you which one your facts support
Including when the answer is not the one that generates the larger fee for this firm. Send us the ISP notice or the summons and complaint and we will give you a direct assessment, confidentially, whether or not you retain us.
The factors that actually drive the number
There is no schedule and no published rate. Anyone who quotes you a fixed figure before reading your file is guessing. In practice the following move the number, in both directions.
| Factor | Effect |
|---|---|
| Number of works asserted on Exhibit A | The single largest driver. Statutory exposure is per work. |
| Whether each work was timely registered | Works falling outside 17 U.S.C. section 412 carry no statutory damages or fee entitlement, which materially reduces their settlement value to the plaintiff. |
| Stage of the case | Pre-identification is ordinarily the most favorable posture. Post-deposition is the least. |
| Strength of the identity defense | A documented multi-user household with a shared or open network is worth real money in negotiation. |
| Whether counsel has appeared | Represented files are handled differently from unrepresented ones. This is not a marketing claim, it is how volume litigation works. |
| Duration and continuity of the recorded activity | A long, continuous record supports the plaintiff's willfulness theory. Activity that stopped before the notice does not. |
| Individual circumstances | Genuine financial hardship, student status, and similar circumstances are frequently relevant to what a plaintiff will accept, and are properly presented by counsel rather than volunteered by the subscriber. |
| The specific plaintiff's counsel | Strike 3 uses a number of lawyers across the country, and they differ meaningfully in posture, timing, and willingness to move. Experience with the individual on the other side matters. |
Published accounts describe Strike 3 resolutions across a very wide band, from four figures to five figures and, in some reported instances, higher. Those accounts almost never disclose the number of works, the registration posture, the stage of the case, or whether counsel was involved. Treat any per-title figure you find on the internet as marketing rather than data, including favorable ones.
What a properly drafted release must contain
The payment is not the deliverable. The release is. A settlement negotiated well and documented poorly can leave you exposed. At a minimum, counsel should confirm each of the following.
- Scope of the release. Does it cover all works in the plaintiff's library and all conduct through the effective date, or only the works listed on Exhibit A? A narrow release invites a second suit over titles that existed all along.
- Who is released. The subscriber alone, or all household members and authorized users? If a family member is the one exposed, a release naming only the account holder solves nothing.
- Who is bound on the other side. Strike 3 Holdings, LLC, and also its affiliates, successors, assignees, and any related rights holders. Copyrights get assigned.
- Confidentiality and non-disparagement. Mutual, with the permitted disclosures you actually need, such as to a spouse, an accountant, or counsel.
- Dismissal mechanics. With prejudice, by a specified date, with the form of the stipulation attached as an exhibit rather than left to be drafted later.
- Non-admission. An express statement that the agreement is not an admission of liability.
- Sequence. The order of signature, dismissal, and payment. Performing out of order is a real and recurring problem that can undermine the enforceability of the bargain you made.
- No further obligations. No ongoing monitoring, reporting, device surrender, or cooperation requirements smuggled into the operative paragraphs.
How to recognize a settlement mill
A number of firms advertise heavily on this niche and process every matter identically: intake, a call, a demand for a flat fee, a negotiated payment, done. That model is fast and profitable, and for some clients the outcome is acceptable. But it has a defect you should know about. A firm that resolves every case has no reason to evaluate whether the plaintiff can prove its case against you, and no leverage when it negotiates, because the other side knows it never litigates.
Warning signs worth taking seriously:
- A settlement figure quoted before anyone has read the complaint, Exhibit A, or the registration data.
- A guarantee of any outcome. Ask for it in writing with a commitment to pay the difference. The conversation will end.
- Advice to resolve the claim before you have been asked who else had access to your network.
- No discussion of registration dates, of section 412, or of the number of works asserted.
- Pressure to sign a retainer on the first call.
- An inability to answer, specifically, how many matters of this type the lawyer has handled.
How this firm charges
Tracnik Law PLLC quotes a flat fee, in writing, for defined stages of work wherever the scope can be defined. Initial file review and assessment, pre-identification representation and negotiation, preparation and filing of a responsive pleading, and negotiated resolution are each scopeable. On the resolution path this means your entire cost is known before you commit: our fee, quoted in advance, plus the negotiated figure. There is no third number.
Contested litigation is different, and we will not pretend otherwise. Once a case moves into discovery the volume of work is driven by the plaintiff, and any lawyer who quotes you a fixed total for that phase is either guessing or planning to revisit it later. What we will do is tell you plainly what each upcoming stage is expected to cost, ask before we incur significant expense, and revisit the settle or defend question at every decision point rather than letting an open ended engagement accumulate by default.
We also decline matters. If your facts point toward a path this firm is not the best fit to handle, we will say so and, where we can, point you toward counsel who is. That is not generosity, it is how a practice that expects to be here in ten years operates.