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.
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.
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.
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.
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.
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…