Some truths and myths about bittorrent lawsuits

There is a lot of bad information out there about bittorrent lawsuits.

The call normally goes like this:

“Hey man, I found your name on the internet from someone who says you are a good lawyer. Well, I got a letter a couple of months ago about some lawsuit where apparently I’m a John Doe defendant. They’re saying I downloaded copyrighted stuff off the internet from bittorrent, and [I did it so now what?] [I definitely did NOT do it] [I pirate so much stuff off the internet that I have no idea if I did it or not] [what are these internets you speak of?]. When I first found out about the lawsuit, I went onto  internet forums and everyone told me I should just ignore the paperwork, so that’s what I did. Well, today I got some stupid letter saying something about default. What does all this mean?”

“Well, right now it means there is a good chance you are quite screwed.”

I get this type call more than I like to. Someone got caught up in a bittorrent lawsuit, they consulted the internet, and the internet gave them bad advice.

Right off the bat, the best advice I can give anyone who is caught up in a bittorrent lawsuit is to consult with an attorney. I know, I’m an attorney so that sounds self-serving, but it’s true. The second you get notice from your ISP that someone is seeking your identity, the best thing you can do is consult with an attorney. If you can’t afford one, you might be able to find one pro bono. But if you care at all about your assets and your reputation, you should trust those things to a good lawyer – not to an internet forum. I know, it could cost you money. Sorry, but that’s life.

That said, I am going to try and set the record straight on a few common myths and truths about bittorrent lawsuits.

These cases never go to trial, so I can ignore them.

Status: Myth. Malibu Media tried a case here in the Eastern District of Pennsylvania and won.

Before, not one bittorrent case has gone to trial. That is absolutely true.

However, Judge Bayelson set a bellwether trial here in Philadelphia to test the evidence. In addition, the plaintiffs have started to name individual defendants whose identities were obtained in other mass actions dismissed without prejudice on procedural grounds. I suspect the plaintiffs will take some of these individually named defendants to trial.

My guess is you will see a lot of these cases go to trial next year.

Although the Bayelson bellwether trial was a big surprise, I personally suspect that the copyright holders are looking for individuals who they believe are the infringers (as opposed to the subscribers) to take to trial and get a judgment. I strongly believe they are doing their research to try and reasonably identify the infringer before naming them individually in a lawsuit – so they can take them to trial and get a judgment.

It’s unlikely they will try every case, but I suspect they will want to try at least a few to send a message.

[Update] Malibu Media tried the Bellwether case and won.

There is no way the plaintiff could win its case at trial, even if I downloaded the file. 

Status: Myth.

Face it. There are a lot of people using bittorrent to download copyrighted material. While the stories about the little old lady who is named in a bittorrent action tend to make the news, make no doubt about it – many people are downloading copyrighted stuff off of bittorrent.

Sure, there are problems with the reliability of torrent tracking. In addition, Jeff Fantalis has made things quite interesting in Colorado by requesting discovery from Malibu Media, including an explanation of how the bittorrent tracking systems work.

However, parties are entitled to discovery. This means that the plaintiff can ask you to clone a copy of your hard drive in order to search it for torrent files and the movie it claims was downloaded. If the plaintiff has identified the infringer correctly in the lawsuit, winning at trial would not be all that difficult if they found the work on your hard drive.

A plaintiff could also arguably build its case through circumstantial evidence. For example, let’s say you have bittorrent on your hard drive and several other copyrighted movies on there, too. The judge may (or may not) allow the plaintiff to argue to the jury that you had the means of doing it since bittorrent was on your system, you obviously have no regard for copyright given that you have several other copyrighted works on your computer, and they have a torrent tracker here on the stand who will testify that they saw you downloading the movie.

Would the judge allow such circumstantial and prejudicial evidence? Dunno. Maybe, maybe not. Depends on the judge.

Would the evidence of the torrent tracker prove to be reliable enough to hold up to a jury’s scrutiny? Dunno. Maybe, maybe not. But in my opinion, a jury is going to be a lot more inclined to believe a torrent tracker if there is evidence you have bittorrent on your hard drive and other copyrighted materials on there.

However, it’s impossible to determine how a jury of 12 random people will weigh evidence. It’s also impossible to know what evidence a judge will allow, and what will be excluded.

That’s what lawyers try and do – evaluate the evidence in your case and give you a candid analysis of how a jury will view it.

Finally, keep this in mind. Critics of “copyright trolls” criticize their methods, reliability of evidence, and suing internet subscribers who may not necessarily be the person who infringed on the content. However, proving a copyright infringement case against an individual, where that individual probably infringed on the work, would not be terribly difficult. The downside is it may cost the plaintiff more money to prosecute than it could recover. Nevertheless, I suspect there will be “loss leader” cases where the infringers are identified and tried to a jury verdict.

If I do nothing, this will just go away.

Status: Myth.

On the one hand, if you do nothing, there is certainly a chance this will go away. In 2010, that was likely. Do nothing, ignore them, then they’ll move on.

In 2012, that isn’t the case anymore. A court recently entered a default judgment against someone who simply ignored the lawsuit in the amount of $153,770.00.

Is there a strong chance you’ll be a person they take to trial? I doubt all theses cases will go to trial, though I suspect many will.

Is there a chance it could be you? Definitely.

Is that something you’re willing to risk? Your call.

What’s more, even if there was a case against you at one time that was dismissed or severed, the plaintiff can re-file it if the dismissal was without prejudice (assuming your identity was obtained from the ISP.) More and more, the plaintiffs are pursuing individuals who were named in mass bittorrent lawsuits and then dismissed based on a motion to sever.

They can hold you liable because your name is on the account, even though you didn’t do it.

Status: Myth.

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.

However, 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.

Of course, if you knew that the person was using your internet to download copyrighted stuff, or you helped them do it, that could change things. In which case, you might be hit with contributory copyright infringement.

Although the answer can differ depending on your specific circumstance, you are not simply on the hook for everything that happens over your internet account just because you pay the bill.

No one should ever settle these cases.

Status: Myth.

In my opinion, there are some people who should settle these cases. Particularly those who have downloaded the movie in question. For whatever reason, Congress has imposed some serious civil penalties for copyright violations, even if the movie in question cost about $20 to download. I know, it’s unfair, it sucks, but that’s the truth. If you infringed on a copyright holder’s work, they can do some serious damage.

That said, and I’m sorry to give you a standard lawyer answer, but the decision to settle depends on your specific circumstances. I’m not kidding when I say this – you ought to consult with an attorney to decide whether a settlement makes sense in your case.

It will probably cost an innocent person more money to clear their name than to just settle the case, even if they didn’t do anything wrong.

Status: Truth.

Some plaintiffs attorneys will just go away if you demonstrate that you are innocent. However, others still want a payment regardless. This payment can range from $3000 – $7000 depending on how many movies were downloaded.

However, I’m not going to pull any punches here – litigation is expensive. The cost of one deposition transcript alone can cost $600, in addition to lawyer fees. You’ll also need to draft discovery and serve it on the other side, who may refuse to answer it without the court forcing you to. Meaning you or your lawyer will have to attend several hearings. These costs run up quickly.

In addition, litigation is time consuming – it requires you to fill out interrogatories, dig up documents, prepare for a deposition, show up for your deposition, prepare for trial, and perhaps even show up to a trial that could last a few days. The time, money, and energy expended through the litigation process is enormous. It’s emotionally draining. It sucks.

However, copyright law contains a statutory fee-shifting (meaning the loser pays) provision under 17 U.S.C. 505. In some specified circumstances, this gives the judge discretion to award attorneys’ fees to a copyright lawsuit winner.

If you win at trial, there is a chance the plaintiff would have to reimburse you costs and lawyer fees. However, if you lose at trial, you could be on the hook for their lawyer fees and expenses.

The decision to take a case to trial depends on your individual circumstances. The job of a lawyer is to evaluate the evidence and determine if it’s a good idea to take a case to trial based on your individual circumstances.

[Update and Editor's Note: There is a great comment on DieTrollDie made by Lindsey Maness. Read it.]

“I want you to tell me everything will be okay, and that these guys are just trolls with no bark to their bite and they’ll all get sanctioned!!! I like the people on the internet forums way better than you!”

My job as a lawyer isn’t to pat you on the head and give you a balloon. It’s to provide a candid analysis and explain to you that yes, there are potentially some significant risks. Even innocent people get put in jail, and people with good cases lose them at trial.

Sorry, that’s the way the law works. I know it’s not what you want to hear, but it’s the truth.

“But… this is all so unfair!”

Yep, but guess what…

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5 Responses to Some truths and myths about bittorrent lawsuits

  1. DieTrollDie says:

    I enjoyed your video and the comment about “fairness.” I really hate it when people say “That is not fair!” That “F” word is more offensive to me then the normal one. ;) I agree consulting with a lawyer initially can be a good thing. At least an IP lawyer with some knowledge of these types of cases. I did that in 2011. It allowed me to make an informed judgment that was the best for ME.

    As far as the Trolls ever voluntarily taking a case to full trial on its merits, I will let their actions speak for themselves. During some of my 2011 posts I said the Trolls were likely to take some Does to trial just to show they were not full of hot air. I’m sure they have had plenty of people call their offices and tell them that they did it. They could easily get a person to consent to have a copy of their hard drive made for analysis. The results could be damning. Since that time, I’m of the opinion that even if they have “real” evidence, they don’t want to expose the inner secrets of their technical monitoring set-up (IPP Limited, 6881 Forensics, etc.) or even the details of some of these porn producers. It will probably be someone like Meier who will brings a case to trial and it backfires for the all the Trolls.

    The “naming” period for these cases is here, but it is still very small. I don’t think you should ignore what the Troll states, but I’m still not impressed. Don’t ignore – get educated and decide what works best for you. Doing nothing only works so far. There comes a point when taking action is in you best interest. Stick you head in the sand and the Troll will thank you all the way to a default judgment.

    Plaintiff CAN win his case on weak evidence. You may never know how or why a jury makes a decision OR if they simply didn’t trust you because of your looks. Couple that with a civil preponderance of evidence standard (51%+) and you can lose a case.

    Settling with the Troll wasn’t for me, but I certainly understand everyones situation is different. Due to various factors, settlement may be the best option. Having a good attorney to figure out this option is of value.

    DieTrollDie :)

  2. Joe Carson says:

    These cases are quite interesting and rigid. Lawsuits based on torrents can get hairy fast, and it’s difficult to track the correct information back to the defendant, unless there is enough evidence. I’ve spoken to several people in these cases and the lines are grey.

    • Anonymous says:

      I’m sure it gets even murkier when you start to suspect that the plaintiff, their attorneys, and their “investigators” are all under the same ownership…

  3. [...] part of its series of posts about BitTorrent litigation, Philly Law Blog recently discussed a “bellwether” trial that U.S. District Michael Baylson has set in [...]

  4. http://torrentfreak.com/piracy-is-not-theft-111104/

    Metaphors and Norms – Understanding Copyright Law in a Digital Society by Stefan Larsson, PhD, Sociology of Law at Lund University in Sweden.

    http://lup.lub.lu.se/record/2157989/file/2158125.pdf

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