Talking Torrents: Frequently Asked Questions About Bittorrent Litigation

One afternoon you check your mailbox and notice that your internet service provider has overnighted you a letter. You open the letter and find it says you’ve been named in a lawsuit for downloading porn, movies, or music on the internet. Your internet provider says they’re going to turn your name over to a law firm unless you file a motion to quash because of a court order.

Uh oh. This doesn’t sound good.

Now what? What the hell is going on?

First, take a deep breath. It’s not the end of the world.

Now I’m going to try and explain what’s going on here…

Ok, first off, what is bittorent?

Bittorrent is a file sharing tool that enables peer to peer file sharing. It works like this: imagine if there were a big puzzle, and when that puzzle was put together, it creates a complete file (like a complete movie). Joe Smith might have part of the puzzle in Iowa, and then he might share a piece with Mark Jones in California. Everyone can reproduce the puzzle. So now, once its downloaded, Joe and Mark both have a full puzzle. They can then replicate it and give copies to their friends, kind of like in Star Trek. Except they are not replicating cups of Earl Grey tea, they are replicating movies, music, and porn. A lot of which happens to be copyrighted. Everyone who was sharing the file is allegedly part of the “swarm“. That is the nature of peer to peer file sharing.

In laymen’s terms, bittorrent is an easy way to download stuff off the internet. It’s typically used to download music, movies, and porn. It is the next generation of Kazaa, Napster, etc.

Did I accidently download something from bittorrent? I click on all kinds of random stuff.

Probably not. You have to install a bittorrent client (software program) on your computer in order to use it. In other words, it would be very difficult to accidently download file via bittorrent, as opposed to clicking on a website.

If there is a program is on your computer called utorrent, Transmission, bittorrent, or other torrent programs, chances are someone has been using your computer to download stuff.

You can’t just click on something and accidently download it off bittorrent. You have to install bittorrent software and then find a specific torrent.

Talk to your kids, housemates, or guests.

How is bittorrent different than say YouTube?

Bittorrent allows users to download and distribute the material. This means when you download something off bittorrent, it exists on your hard drive until it’s deleted. You now have a copy of the content.

Conversely, a streaming site like YouTube hosts the content. If the movie is copyrighted, the copyright holder has the right to send a DMCA takedown notice to YouTube. The copyright holder cannot sue YouTube if if the hosting site complies with the DMCA. Similarly, it probably cannot sue YouTube users for viewing the copyrighted content, either, anymore than they could sue patrons at a bar for watching stolen cable. The copyright holder CAN sue the person who originally uploaded the material to YouTube.

To quote Judge Posner:

As long as the [myVidster] visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right, conferred by the Copyright Act, “to reproduce the copyrighted work in copies” and “distribute copies … of the copyrighted work to the public.” His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement. The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet

In short, the difference is that YouTube users are not redistributing the content. Bittorrent users are.

I thought they just sue people who upload stuff! Isn’t that true?

Not necessarily true. When you use bittorrent, you are both uploading and downloading the content at the same time.

The copyright holders do not just sue people who originally upload the torrent, they sue people who are part of the torrent swarm. I.e., the people who are just downloading it.

I have [kids, a house-guest, a wife] who use the internet for all kinds of stuff! Can I be held responsible for what they do?

Probably not, though other courts might decide differently.

If you are not the actual infringer, in many cases, plaintiff’s counsel is allowed to take a deposition to figure out who has access to your internet account. So if a file were downloaded on January 5, 2012 at 1:23am, they will probably want to know who had access to your internet on that date at that time.

On the other hand, a court could find that leaving your internet totally unsecure constitutes negligence. No court has found that, but the theory has only been tested by two courts that I’m aware of. It also bears noting that the Tabora case was dismissed on preemption grounds. (meaning the court found it should have been filed in a federal court, as opposed to a state court.)

Whether you knew the person was infringing would be an important fact to evaluate. You could arguably be liable for contributory copyright infringement.

How do bittorrent lawsuits work?

Media companies (porn companies, movie companies, and music companies) hire “torrent trackers“, who allegedly harvest IP addresses associated with the bittorrent swarm. These torrent trackers record the IP address of people who are sharing files. An IP address is essentially an internet telephone number – it can be used to track the identity of the person who pays the internet bill. It digitally identifies internet account holders, just like your telephone number will reflect the account holder. For instance, if my wife makes a call from our house phone, it comes up on caller ID as “Jordan Rushie” because the account is in my name.

From there, the torrent trackers give the IP addresses to the media company’s lawyer.

The lawyer files a lawsuit in federal court that looks like “Media Company v. John Does 1-500″. When the lawsuit is filed, the plaintiff’s attorney doesn’t know the identity of the person who pays the internet bill. They have a report from a torrent tracker stating that a person was downloading their material from a certain IP address, on a certain date, at a certain time, but that’s it.

In order to get your identity, the plaintiff’s lawyer has to subpoena your ISP (internet service provider, such as Comcast, Verizon, Cox, RoadRunner, etc.) From there, the ISP arguably must inform you that the plaintiff is seeking your identity and give you an opportunity to dispute the subpoena under the Cable Communications Act of 1984.

The plaintiff’s attorney asks the court to allow them to serve a subpoena on your ISP in order to have that information. Sometimes the ISP will fight the plaintiff on disclosing your information, sometimes they won’t.

However, once a court issues a court order compelling the ISP to turn over your identifying information, you will normally be overnighted a letter saying you have been named in a lawsuit.

If the plaintiff’s lawyer gets your information, they will probably send you a demand letter and try and make contact with you.

They may amend the Complaint to include your name if you do not fight the subpoena.

Is there a chance the torrent tracker made a mistake?

Possibly. The reliability of torrent tracking has never been tested in court. A German court did not believe torrent trackers provided reliable evidence, and some have suggested that the media companies are the ones who placed the torrents on the internet.

These issues have not been explored by a court.

Yet.

I’m totally innocent! Should I just call the plaintiff’s lawyer and clear things up?

It is probably not in your best interest to do that, even if you are completely innocent or someone used your internet without your knowledge. You might say something stupid, make an admission, or disclose your identity. It’s like talking to the cops.

What you should do is hire a lawyer and have them call the plaintiff’s lawyer for you.

Can they hold me responsible even if someone else used my internet to download the material?

Probably not, but maybe.

It’s pretty clear that an IP address is not a person. In other words, just because you pay for the internet bill doesn’t mean you are the one who downloaded the copyrighted material.

Many of the bittorrent prosecution attorneys are asserting a theory of negligence if your wireless router was left unsecured.

This theory has been rejected in every court it was challenged in. However, that does not necessarily mean the theory will not be accepted by other courts.

Moreover, the plaintiff can ask to take your deposition, ask you had access to your internet account, and then depose those people to try and find the infringer. If your wireless router was unsecured, I believe the plaintiff’s attorney would have a difficult time finding the infringer. In that case, the plaintiff could argue you should be held liable for negligence.

Should I just settle the case?

I hate to give you the standard lawyer answer, but it depends. You should consult with a lawyer who will go over your options with you. If a client came to me personally and said “Yeah, I’ve been downloading stuff from these guys for a long time”, I would probably recommend you settle the case and get a general release. But if you are adamant that you and no one in your household downloaded the material, I would probably advise you to fight it and seek fees.

It all depends on your specific situation. And since every circumstance is different, you should hire a lawyer to discuss your specific circumstances.

What are the chances that they take me to trial and get a big verdict?

Hard to say.

On the one hand, consider Joel Tenenbaum in Sony BMG v. Tenenbaum. Joel downloaded 15 songs off Kazaa. The jury entered a huge verdict against him, which is currently at $675,000 after a few appeals.

On the other hand, I am unaware of any bittorrent case being tried successfully to a verdict. Sony BMG v. Tenebaum and Capitol v. Thomas seem to be the exception.

Hundreds of thousands of people have been accused of downloading copyrighted content via bittorrent but none of the cases have been taken before a jury.

Yet…

I do believe one of these cases will ultimately be tried to a verdict.

I don’t even live in the state where they sued me! Can they do that?

In most states, courts do not allow plaintiffs to sue alleged copyright infringers outside of the state where they live. In other words, the plaintiff must sue you in the state where you live according to most of the case law.

However, some courts have allowed it. Judge Howell, for example, wrote an opinion that allows plaintiffs to sue defendants in states where they don’t live. Her decision is being appealed, and she has ties to the copyright industry.

Recently, most of the plaintiffs have been filing suit in the jurisdiction where the defendants live.

In short, it depends on the court and the judge.

I don’t even know any of the other people named in this lawsuit. How can they sue us all at once?

In legalese, we called that “improper joinder.” Some courts have held that joining this many defendants in one lawsuit is improper.

Other courts have endorsed the practice.

While improper joinder is a defense to a bittorrent claim, whether it will be successful depends on the court you are in.

Importation questions are whether you downloaded the same file from the same members of the swarm.

I read somewhere that a judge in some state dismissed some case that was similar to mine so this one will obviously be dismissed, right?

Not necessarily. Some courts have been hard on bittorrent cases, referring to it as an extortion scheme.

Other courts have endorsed the practice.

Since there is no precedent from appellate courts, it all just depends on where the suit was filed and who the judge is. Ask your lawyer how courts in the jurisdiction where you are sued view these cases.

Decisions vary from state to state, and there are even differences of opinions in the same courts.

This whole thing sounds like a huge headache and I just want it to go away. What should I do?

It depends on you. If you want to settle, that is your choice. The cheapest time to settle is before the plaintiff’s attorney has your name and identifying information. That is because the plaintiff and the defendant are both equally at risk.

There is a chance the plaintiff will get your identifying information, and there is a chance the court will say “No, this lawsuit is not proper.” If the plaintiff gets your identifying information, they will want more money from you to settle, because you rolled the dice and lost.

It’s your choice whether to roll the dice – a lawyer will help you determine what your odds are, and what type of risk you are looking at. Big factors will include whether you downloaded the material or whether you know who downloaded the material.

[Editor’s Note]: Interesting comment from Sophisticated Jane Doe:

One thing that is inaccurate in my opinion: all the “roll the dice” concept. “If we name you, the stakes are higher” — that’s what trolls want everyone to believe, and, although it is intuitive, I don’t think it is correct. As long as the public believes in “lost opportunity fee,” trolls are happy to extract whatever they can. I’m not aware of any case when settlement demand was increased in the absence of new information.

There were cases when defendants admitted the tort and ended up paying more, but in the “pure bluff” instances it is not the case. I’m aware of 3 cases when settlement demands were actually lowered after a Doe was named, one of them is documented: Wong v. HDP, where Gibbs lowered the hallmark $3400 to $3000. 2 others were confidentially communicated to me by the defendants.

Interesting. I’ve never seen that in practice (which doesn’t mean much), but SJD might be right.

I want to fight these guys. What do I do?

Hire a lawyer who defends bittorrent cases.

I want to countersue these guys. What do I do?

Hire a lawyer who defends bittorrent cases. There are some instances of class action suits and countersuits. None of them have been decided yet.

Again, hire a lawyer and discuss your options with him or her.

Who are you, and why should I listen to you, anyway?

I have defended and prosecuted these cases. My practice is now limited to defending people who are accused of downloading copyrighted material off the internet in Pennsylvania and New Jersey.

Are there any other blogs about this stuff?

Yup, some really good ones:

Houston Lawyer Blog (Rob Cashman)
Fightcopyrighttrolls
DieTrollDie
Electronic Frontier Foundation
Torrentfreak

Just be careful about what you post in the comments section. Remember, they could always subpoena WordPress or the bloggers if you make incriminating statements or admissions.

Do you know other lawyers who can help me out?

Yup. Here are a few…

Charlie Thomas
Erin Russell
Steve O’Donnell
Kubs Lalchandani
Aman Sharma
Konrad Sherninan
Rob Cashman
Booth Sweet

The list isn’t exclusive. It’s just some of the lawyers I’ve dealt with who I believe are very good. There are other good torrent defense lawyers out there I might have forgotten to include.

Shop around and figure out who you are comfortable with. Consider hiring a lawyer in the jurisdiction where the suit was filed.

I’m embarrassed that I downloaded porn and don’t want to tell my lawyer. What should I do?

Tell your lawyer the truth. They won’t hold it against you. Your lawyer needs to know the truth to best defend you.

And if you downloaded porn, so what? That’s what the internet is for!

7 Responses to Talking Torrents: Frequently Asked Questions About Bittorrent Litigation

  1. Raul says:

    Nice balanced treatment of a topic that all too often is treated in an unbalanced manner. Keep up the good fight!

  2. SJD says:

    Agree with Raul.

    One thing that is inaccurate in my opinion: all the “roll the dice” concept. “If we name you, the stakes are higher” — that’s what trolls want everyone to believe, and, although it is intuitive, I don’t think it is correct. As long as the public believes in “lost opportunity fee,” trolls are happy to extract whatever they can. I’m not aware of any case when settlement demand was increased in the absence of new information.

    There were cases when defendants admitted the tort and ended up paying more, but in the “pure bluff” instances it is not the case. I’m aware of 3 cases when settlement demands were actually lowered after a Doe was named, one of them is documented: Wong v. HDP, where Gibbs lowered the hallmark $3400 to $3000. 2 others were confidentially communicated to me by the defendants.

  3. Anonymous says:

    Can you tell me what you mean by a general release? You use it in the context of “downloading stuff from these guys for a long time”. Can you get a release for any alleged infringements (known or unknown) up to the date of settlement or is it just for the one alleged infringement? Just curious. If someone thinks (s)he could potentially be on the hook for several infringements, that may affect a person’s decision to fight or not. Sometimes you have to roll the hard six based on the situation.

    • A general release means the company who releases you cannot sue you for other past stuff. For instance, let’s say you have been notoriously downloading Amateur Allure movies (Hard Drive Productions) since 2010. Then they nail you in a 2012 sting. A general release means you start fresh from the day you sign the settlement agreement. You pay one fee and you’re free of them, including past infringements.

      That is a very important consideration when deciding what your options are, in my opinion.

      However, it does NOT release you from every other media company. So you might still get hit by X-Art (Malibu Media), if you have been torrenting their stuff, too. And it might be filed by the same law firm but it happens to be a different client.

  4. that anonymous coward says:

    Oopsie…
    Link under “How do bittorrent lawsuits work?” to torrent trackers is linked to the definition of an actual tracker, rather than an IP Gathering firm definition.
    Trackers merely help coordinate people using BT for the transfer of files.
    IP tracking firms are often very secretive about their methods but there are only so many ways they can be doing it.
    1 – They are part of the swarm like the alleged Does, capturing every IP address they see.
    2 – They are the source of the file capturing every IP that connects, and we devolve into unclean hands doctrine.
    3 – They are Evan Stone and are using an off the shelf BT client and actively participating in the swarm making the alleged infringement worse. True story.
    4 – Throw darts at board and pray. (Okay I made this one up, but it is as accurate a method as is employed currently.)

    They should be using a specialized client incapable of uploading, but corners are sometimes cut and code costs money. Clients that don’t share nicely with everyone find themselves shut out of the swarm rather quickly.

    Oh and a free protip for the Does… always make sure the alleged file actually has a copyright filed and the lawyer wrote the name correctly. *giggle*

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