Talking Torrents: Some Thoughts on Prosecuting and Defending Bittorrent Cases

600px-US-CopyrightOffice-SealMany of you have heard of bittorrent litigation by now. In short, copyright holders will sue a group of people sharing their work on bittorrent. Often the lawsuits involve pornographic movies. Many of these lawsuits also involve large amounts of defendants, e.g., Media Company v. Does 1-50, which has lead to significant amounts of criticism. This month I had the pleasure of defending the first ever bittorent case to ever see the inside of a courtroom in the Bellwether Trial – Malibu Media v. Does 1, 13, and 16.

When it comes to the nuts and bolts of litigating bittorrent cases, there is a popular narrative on the internet. It goes something like this: all the cases are a mass extortion scheme, the people accused were picked out of a hat, no one pirates anything on the internet, nothing could ever be proven in court, and if you just fight them a little bit these guys will run away and probably get sanctioned like Prenda Law.

If you read the internet, you would think everyone who gets sued in a torrent case is an unsuspecting victim forced to settle because it’s the cheaper route. And it doesn’t matter because none of theses case could ever be taken to trial anyway.

I disagree, and I think there is a lot of untrue information out there on the internet. This is my two cents, take it for what it’s worth…

An IP address is not a person, but it’s a good clue as to who the infringer is

Everyone knows that an IP address is not a person. The subscriber may not be the infringer, but it is a good clue as to who the infringer is. Which is why arguing that “an IP address is not a person” is not enough to have a bittorent case thrown out.

Under the federal rules of civil procedure, it is enough for a plaintiff to allege that they know an infringement occurred and they have an idea where it came from, to make it into discovery. From there, a plaintiff can depose the subscriber and ask (under oath) “Did you do it? Ok. If not, who had access to your wireless router on such and such a date?”

Why is that?

Because Rule 8 of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R. Civ. P. 8(a)(2), in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-55 (2007) (quoting Conley, 355 U.S. at 47). The Court must also accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989).

Meaning that if a plaintiff pleads in their Complaint that they have evidence that an infringement occurred, and they believe that a deposition of the subscriber is reasonably calculated to lead to the discovery of admissible evidence (namely, who the infringer is), just about every court I am aware of will allow them to develop their case using the civil discovery process.

I’ve made this analogy before – if you had the license plate of someone who hit you in a car accident, that would be enough to get into court and depose the owner of the car. With the license plate, you are one deposition away from finding who had access to the car on the date of the accident. Even though a license plate is not a person, it’s a good clue to get the information I need to find the person driving it on the night of the accident.

The plaintiff can depose everyone who had access to the wireless router. So while the subscriber may ultimately not be the infringer, a deposition might reveal that the subscriber has a roommate that uses bittorrent. In which case, the plaintiff now knows who to go after.

“You can’t prove it!” isn’t much of a defense in a civil case. Civil litigation is different than defending criminals thanks to the discovery process

Civil cases are very different than criminal cases. In a criminal case, there is extremely limited discovery, a defendant can plead the 5th, and it’s on the prosecution to prove their case beyond a reasonable doubt. In a criminal case, you can simply argue that the prosecution didn’t prove its case beyond a reasonable doubt. The defendant does not even have to take the stand thanks to the 5th Amendment.

A civil case doesn’t work like that, though. In a civil case, the parties in a civil get access to the civil discovery process. The parties get to ask questions under oath in depositions before anyone ever sees the inside of a courtroom, in addition to demanding copies of documents, hard drives, and other tangible things that may be relevant to the claim or defense of a party.

Practically, this means that the plaintiff can demand copies of all hard drives in the house, and will most likely get them in the discovery process, in order to conduct a forensic inspection.

In addition, a plaintiff can take the deposition of a defendant and ask them under oath point blank whether or not they downloaded the material at issue. If a Doe did in fact download the movie, s/he has to admit it in the deposition or lie under oath (which is perjury). If the answer is “no”, there will be many follow up questions like “Who had access to your internet the night the movie was downloaded? Was your wireless router secured? How many computers are in your household? Who has access to them? Does anyone else in your household use bittorrent? Do you know what bittorrent is? Have you ever had it on your computer? Do you have any pirated material on your computer? When did you start pirating stuff? Have you stopped? Do you know who my client is? Are you familiar with their website?” etc.

Long before trial, everyone knows what is at issue, because of the civil discovery process. You cannot just say “you can’t prove it!” If you did do it, the only way to deny it is to lie under oath in your deposition and possibly destroy evidence. That is illegal, and you could get into huge amounts of trouble for doing it.

A plaintiff could probably build their case with circumstantial evidence, because civil cases are tried on a preponderance of the evidence standard

Keep this concept in mind: in a civil case, the plaintiff does not need to prove their case beyond a reasonable doubt, but rather by preponderance of the evidence. According to the 3rd Circuit model jury instructions:

That means [plaintiff] has to prove to you, in light of all the evidence, that what [he/she/it] claims is more likely so than not so. To say it differently: if you were to put the evidence favorable to [plaintiff] and the evidence favorable to [defendant] on opposite sides of the scales, [plaintiff] would have to make the scales tip somewhat on [his/her/its] side. If [plaintiff] fails to meet this burden, the verdict must be for [defendant]. If you find after considering all the evidence that a claim or fact is more likely so than not so, then the claim or fact has been proved by a preponderance of the evidence.

You may have heard of the term “proof beyond a reasonable doubt.” That is a stricter standard of proof and it applies only to criminal cases. It does not apply in civil cases such as this. So you should put it out of your mind.

Keep in mind that by the time a civil case gets to trial, the parties have already conducted depositions and exchanged documents. This means that the witnesses have already testified in depositions, hard drives have already been analyzed, and the only issues are trial will be disputed issues of fact. (i.e. two witnesses said the light was red in their depositions, while two other witnesses said that the light was green. Which witnesses will the jury believe?) But there are no surprises in civil litigation, which is why 99% of cases settle before trial.

But what if the Doe denied downloading the movie in their deposition, and a forensic inspection of the hard drive came up “inconclusive?” What then?

Let’s pretend HBO filed a lawsuit against people for downloading Game of Thrones.

A plaintiff could build a decent case through circumstantial evidence by proving that the defendant (among other things):

- Knew what bittorrent was and had it on their system at some point
– Pirated other things like movies, music, e-books, video games, etc.
– Googled “Game of Thrones Season 2 torrent” around the time they are alleging the download occurred
– Googled other torrent files, and things related to “Game of Thrones” (“…but I’ve never even seen Game of Thrones! It’s just blind luck that I happen to read about it online all the time…”)
– Routinely goes onto torrent websites, and knows what The Pirate Bay is
– Had a wireless router that was secured, and presented no evidence that someone hacked into it
– Could have deleted the movies through testimony of a computer forensics expert (though there is a much better chance that the forensics expert will testify that they have good evidence that the hard drive has been tampered with).

In which case, the defendant would have to convince a jury that “Yeah, I use bittorrent, yeah I Googled “Game of Thrones Season 2 torrents”, and watch I enjoy Game of Thrones, and yeah I pirate a bunch of other stuff, but I didn’t pirate Game of Thrones! And, um, and if I did download Game of Thrones, it wasn’t willful because I had no idea that I could pay for HBO or buy the DVDs at Target.”

That will go over very well at trial, especially under a preponderance of the evidence standard…

In the same vein, that is why the “my router could have been hacked” defense falls apart without actual evidence. Could it happen? Sure, absolutely. But to present that defense at trial, a defendant would have to present  actual evidence that the router was hacked. Saying “my router could have been hacked” without an evidentiary basis is just as powerful as saying “Aliens could have beamed into my room and done the download.” It’s certainly possible, but you need some evidence for it. Otherwise, it’s simply speculation.

“But it’s so unfair!” is not a defense at trial. Cases are tried based on the law and evidence, now what you feel the law should be. Congress has made it clear that they intend statutory damages to be extremely harsh against regular internet users.

I know. You think that the Copyright Act is completely unfair, and that the punitive nature of statutory damages is outrageous. Those arguments have already been raised in court and rejected. Juries entered six figure verdicts against Joel Tenenbaum and Jammie Rasset. In Tenenbaum, the trial court even noted:

As this Court has previously noted, it is very, very concerned that there is a deep potential for injustice in the Copyright Act as it is currently written. It urges—no, implores—Congress to amend the statute to reflect the realities of file sharing. There is something wrong with a law that routinely threatens teenagers and students with astronomical penalties for an activity whose implications they may not have fully understood. The injury to the copyright holder may be real, and even substantial, but, under the statute, the record companies do not even have to prove actual damage.

The appeals court also commented that “[w]e comment that this case raises concerns about application of the Copyright Act which Congress may wish to examine.” Sony BMG Music Entm’t v. Tenenbaum, 660 F.3d 487, 490 (1st Cir. Mass. 2011). Nevertheless, the 1st Circuit upheld the jury’s decision to impose a $650,000 verdict on the defendant.

These large awards are actually consistent with Congressional intent. See H.R. Rep. No. 106-216, at 2-3 (1999):

Notwithstanding these penalties, copyright piracy of intellectual property flourishes, assisted in large part by today’s world of advanced technologies … By the turn of the century the Internet is projected to have more than 200 million users, and the development of new technology will create additional incentive for copyright thieves to steal protected works.

But surely congress didn’t mean to punish ordinary internet users, who didn’t know they were doing anything wrong… right? Errr, that is exactly what Congress intended:

Many computer users are either ignorant that copyright laws apply to Internet activity, or they simply believe that they will not be caught or prosecuted for their conduct. Also, many infringers do not consider the current copyright infringement penalties a real threat and continue infringing, even after a copyright owner puts them on notice that their actions constitute infringement and that they should stop the activity or face legal action. In light of this disturbing trend, it is manifest that Congress respond appropriately with updated penalties to dissuade such conduct. H.R. 1761 increases copyright penalties to have a significant deterrent effect on copyright infringement.

When Congress amended the Copyright Act in 1999 to increase penalties and statutory damages, they made it clear that they intended the punishment to be significant, and  to apply to individual internet users.

That aside, what is most notable with Tenenbaum and Rasset is they could have settled both their cases in the $3k range. They chose to take it to trial because “it’s so unfair.” But while copyright holders can obtain significant statutory damages if the case is taken to trial, most just opt to settle for reasonable amounts. Unless, of course, the defendant forces a trial.

What is ironic is that people complain about the significant amount of statutory damages, but at the same time, complain that “copyright trolls” only demand a nominal amount of money to settle.

Well, would you rather they demand the full freight here? And if they are demanding a relatively nominal sum from someone who is guilty, are you sure it’s a good idea to take the case to trial?

So what does it all mean for lawyers?

Lawyers, here is my advice to you. Before filing a verified Answer, or subjecting your client to a deposition, make sure to ask your clients the right questions first. If you don’t ask these questions, you have my assurance that the plaintiff’s lawyer will. Even if your client finds them offensive or annoying.

Any lawyer handling a bittorrent case should, at a minimum, ask your client:

- Did you do what the plaintiff is alleging? If you did, it’s fine, and I’m not going to judge you for it. But if you don’t tell me the truth, I’m not going to be able to handle your case right. (If they continue to answer “no” proceed with…)
– Is your wireless secure router or unsecure?
– Who has access to your wireless router? Who had access on the date the plaintiff alleges the infringement happened? How many electronic devices do you own, or have control of (like a work laptop), that connect to your wireless router?
– Since you received notice of this lawsuit, have you deleted anything from any of your electronic devices? Has anyone in your household? What was deleted? Why? (from there, ask to make forensically sound copies of which hard drive in the house.)
– Do you understand that destroying evidence is a crime, and that you could get in very serious trouble for it – way more trouble than this is worth?
– Do you know what bittorrent is? Have you ever used it? Has anyone in your house ever used it? Are you sure?
– Are you aware of popular torrent sites like The Pirate Bay?
– Have you ever done a Google (Yahoo!, Ask Jeeves, Bing!, whatever) search for plaintiff’s website? Have you ever Googled a torrent? If the plaintiff were to subpoena Google and obtain your search history, what would they say?
– Do you have any pirated material on your computers? Does anyone in your household? This includes movies, music, video games, e-books, video game ROMs, etc. How did these things get onto your computer?
– Are you familiar with the content that the plaintiff produces? How are you familiar with it? Do you view the content?
– Do you have any reason to believe that your wireless router has ever been hacked?
– Do you understand that a judgement against you for willful infringement may not be dischargeable in bankruptcy? Do you have assets worth protecting? (i.e. your house, your car, a savings account, etc.) Are you willing to put these things at risk?

In my experience, almost everyone who calls me about these cases says they are innocent at first. Then, after a long talk that involves all these questions, they either admit that they did it, or someone in their house did it. From there we have a long chat that not everything they read on the internet is true, and a lot of it is just plain wrong.

Again, I know that goes against the popular narrative, but it’s the truth.

Finally, consider who is suing your client. At this point, I think it is safe to say anything filed by Prenda Law should be taken with a grain of salt. But keep in mind that not every plaintiff is Prenda. It’s very important to determine who the plaintiff is when determining how serious to take them. If you file a motion based on the conduct of say Prenda, but the plaintiff is actually Malibu, you’re going to end up looking like a total moron when the plaintiff’s attorney turns around and says “I am not affiliated with those lawyers or that plaintiff. This motion is akin calling me a filthy ambulance chaser based on the conduct of a different law firm.”

Why do you write these articles? You sound like a plaintiff’s lawyer! This information is making me angry because it doesn’t follow the narrative!

To quote Judge Baylson during the Bellwether Trial: “I am aware of the fact that the so called blogosphere, where many people once again taking advantage of our First Amendment, and they’re not all true, but they are certainly accessible.”

I believe there is too much bad information out there about bittorrent cases. I am unimpressed with a lot of what I read online about these cases, especially by lawyers who are probably trolling for clients. While I could rant and rave about “the big mean evil trolls”, and give belly rubs to anyone who reads my blog, that’s not exactly helpful for people out there looking for accurate information about bittorrent lawsuits.

If I wanted more bittorrent defense clients, I would write articles about how all the John Does are victims, and for a fee we’ll prove that to the court! Except I would be lying to you, and putting even more bad information out there, although I’m sure it would make the phone ring.

Bittorrent defense makes up about 1% of my practice, so I have very little skin in the game. The majority of defense cases I have handled were pro bono, usually for students, people with low income, or people with health problems. It’s a fun talking point, and it sounds good on the website, but we would do just fine if no one ever called us again about these lawsuits. (Side note: if you think your life is over because you have no money and have been implicated in one of these lawsuits, try calling me and asking for pro bono help. If I have the time, you will be surprised at how these can get worked out. The best thing you can do is ask for help from a lawyer NOW, and not let it spin out of control. Ignoring it will make matters worse. I know you’re scared, and I know you think there is nothing you can do because your’e broke. Call a bonafide Doe defense lawyer, even if you’re broke. Trust me on this. We haven’t turned anyone away.)

More importantly, copyright litigation isn’t a religious crusade for me. I represent clients – not causes. When I take on a case, the goal is to do the best job for the client possible. That’s it. No more, no less.

If you want the law to be an instrument of change, start a blog or lobby Congress. Law practice — the profession of providing professional representation to clients who need you — is not your personal religious crusade to change copyright law. Embarking on the defense of someone accused of  copyright infringement in a way done to further one’s personal anti-copyright law agenda would be cause for moral and ethical outrage…

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30 Responses to Talking Torrents: Some Thoughts on Prosecuting and Defending Bittorrent Cases

  1. Raul says:

    At this time last year Prenda Law was at the zenith of its power having launched its 6500 Doe extortion scam and presumably raking in millions. However thanks to some dedicated lawyers and Judge Otis Wright of the CACD (not to mention some watchdog blogs) this once feared law firm is in ruins and the laughing stock of the legal community.

    Wisely Malibu Media does not file lawsuits in the CACD anymore, coincidence?

    Lets see where Lipscomb/Malibu Media stand this time next year as they have the same business model as that of Prenda and its former clients.

    • Eh, I think Malibu’s new business model will probably pass muster. It looks like they have stopped filing mass Doe lawsuits and instead are pursuing individuals accused of mass infringement. They just filed 16 individual suits here in EDPA last month.

      Plus, there is also a huge difference between Lipscomb and Prenda – Malibu is a real, actual client. Malibu makes the movies they’re suing over. I don’t think anyone disputes that.

      The stuff with Prenda was so unbelievable that you couldn’t even make it up. Forged signatures, shell companies, and the lawyers actually being the clients. I hope someone writes a book about it.

      But I doubt we’ll ever see anything like the Prendapocalypse again.

      • SJD says:

        > Malibu is a real, actual client.

        So were:

        Openmind Solutions
        Sunlust Pictures
        Millennium TGA
        Lightspeed Media
        First Time Videos
        Boy Racer
        Hard Drive Productions
        CP Productions
        Pink Lotus Entertainment
        Pacific Century International
        Bubblegum Productions

        So what? And, mind you, Prenda’s downfall started with real clients, namely Lightspeed, HDP & Sunlust.

        “Lipscomb is the same as Prenda, just more careful” ™

    • Also, this brings up the more interesting point which I will write about later…

      Most Does don’t want to be heroes. They don’t want to “take down the empire.” The Bellwether Does certainly did not ask for that trial. They want to get out of the lawsuit quickly, cheaply, and without damage to their reputation. I think it was SJD who said “The Does just want to be left alone.” That is absolutely 100% true.

      As a lawyer, my duty is to my client and to do what’s best for them – not to prove a point, or to right a wrong. They’re the ones whose families, reputations, and financial well being are on the line.

      • that anonymous coward says:

        And this is the problem with this type of litigation.
        It is often just easier to give in and pay them, than to litigate the case.
        I know people who were 100% innocent of the claims, who just paid to make them go away. To avoid having their name attached to the “lovely” works some of these porn houses make.

        Even if your 100% innocent with witnesses galore putting you on Mars at the time, they still bother you. They still hint about what might happen if this gets out. They want you to find someone to blame for them.

        Not everyone accused is innocent, but many innocent people have paid up to make it stop and to keep from having damage to their life.

        As I’ve often said, People remember the accusation never the retraction. I’d tell you to ask Richard Jewel but he’s dead now… Oh and for those of you that recognize the name – He wasn’t the one who set the bomb, but had his life destroyed anyways and people’s first thought of him is still oh the Olympic Bomber.

        The Does do just want to be left alone, but how many innocents need to pay up before people question whats happening?

  2. SJD says:

    Funny fact. Wright’s famous essentially an extortion scheme, a phrase that have been echoing in court dockets for almost a year, was not directed at Prenda, but to Malibu Media/Lipscomb (formally their CACD local Leemore Kushner).

    As Raul mentioned above, another funny fact that Lipscomb has governed himself accordingly in that district and called off his attack dogs. Wonder why.

      • Ken says:

        Great post. Providing your valuable perspective for Does is much appreciated. I agree that the situation they are facing in the recent single-doe MM suits is very serious.

        Been curious about the legality of some of the blackmail/extortion-like tactics of trolling.

        Consider the following situation:
        I file a civil suit against someone. Call him “Fred” and let’s assume that he actually did whatever it is the suit is about. He doesn’t have representation yet. I (or if it matters, change that to “My lawyer and I”) hire an aggressive third-party to routinely call Fred and tell him his name will be dragged through the mud, his reputation ruined, he may end up paying a ton of money, etc., but that all this can go away if he pays X dollars to us as a settlement. I start to call his friends and family as well, and generally do everything I can to harass and scare Fred.

        Is this illegal?

  3. Curious says:

    It was my understanding that one of the issues brought up by Judge Wright was whether a snapshot of a download was sufficient evidence to support a claim of copyright infringement. Likewise, whether simply being the subscriber was sufficient (under rule 11?) to name the subscriber as the infringer. It sounds to me like you are claiming that these issues are myths. Is that correct? My understanding was that the idea was that the plaintiffs sought discovery of the IP address holder in order to Investigate to determine who the infringer was. I though Judge Wright was saying being an IP account holder was insufficient evidence BY ITSELF under the rules of civil procedure to name the account holder the infringer in a lawsuit. I believe I remember seeing numerous instances of interactions where the plaintiffs insisted that the IP address holders weren’t defendants. Malibu Media appeared to switch this up with their single doe cases immediately naming the account holder as the infringer. Is this correct or am I misinterpreting something? IANAL, so I could be misinterpreting this.

  4. Anonymous says:

    This post is excellent and is written by a lawyer who can see the wood for the trees.

    Others have written on this topic, but none of those have litigated even a single BitTorrent case. They risk leading Does down a very dark path which may result in $300k+ in attorney fees at the end of trial. It is unclear why so many are spreading misinformation when it does not benefit the cause. Perhaps it is because it is easier to write about than the truth. I don’t know.

    If they really wanted to do something worthwhile, then they should focus their energies on lobbying Congress for change. This is the only way forward. Not writing emotion fueled and dangerous articles for Does to read. I bet the Does who were picked for the PA trial acted on the advice of those other blogs by filing a motion to quash/sever.

    If I needed a BitTorrent lawyer, I would hire you in an instant.

  5. Curious says:

    Hi Jordan,

    When you say willful infringement is not dis-chargeable in bankruptcy, is there any new case that makes malice easier to prove. I mean in the Barboza case, they were selling pirated tapes and they even couldn’t prove malice because of a myriad of reasons. Do I think clicking on a torrent is willful? sure, but malicious? not unless I was selling and ignoring Malibu’s cease and desist letters which they don’t send. It would be different in my opinion if they sent you a letter saying “hey stop this or else…” and then if you continue, them taking further action could very well prove malice because they were put on notice. Please let me know your thoughts on this as it is always great to get a lawyers perspective.

    Do you think John Doe 16 will file BK? or any of the does for that matter?

    • Sorry to give you a lawyer answer, but “it depends.”

      It would depend on a wide variety of factors, like the nature of the infringement, how much you downloaded, etc. Normally a plaintiff in a copyright infringement case will craft jury instructions and ask them to find the injury was willful and malicious to ensure it isn’t dischargeable.

      Clicking on a torrent could be a willful and malicious injury if you know the material is copyrighted, you know the plaintiff runs a pay site, yet you chose to download a significant amount of their movies. You might be able to argue it was not willful and malicious if you weren’t sure what it was or something. If it’s a default judgment, I would ask the court to add in that the injury was willful and malicious.

      But again, it would depend on the very specific factors of your own case.

      I don’t know what Doe 16 is going to do, or what Does who are not my client are going to do.

      • Curious says:

        The reason I ask is because in the EFF memo on this during the RIAA days, the (9th circuit) set rules which barred default judgments for being used in weighing the 526a bankruptcy exception because they were not tested on the merits, and therefore the plaintiff defending the judgement would need to have a double trial in BK court. Does this issue vary based on circuit? I beleive strongly in the two prong approach for finding malice which entails 1. a purposeful act 2. which necessarily causes injury. So even if the act was purposeful, they would need to prove the intent to injure, which might be tough. Do you think any plaintiff, even having 30+ infringements levied against a doe would be open for settling?

        I sometimes think some plaintiffs have “slam dunk” cases against does and would take them all the way because they can, but I know they cost money, and only MM seems to have the willpower to do it.

        And btw the 2 big wins for the RIAA were malicious in nature because each had been instant messaged in eDonkey telling them to stop, and they persisted. Tenebnaum actually got a typed letter from Sony 2 years prior and never ceased. Those 2 were total idiots for not settling for such nominal sums.

  6. Curious says:

    Couple of questions regarding issues with torrenting lawsuits. IANAL and was just thinking about the cases from a lay POV.

    Malibu Media zealously files DMCA takedown notices from “tube” sites but not for torrents. They’ve failed to take actions such as watermarking that would seriously decrease their vulnerability to torrentors. They monitor torrents for months to extract Does, without any effort to disable them. If a case got to damages, do they have a responsibility to mitigate their damages?

    Likewise, there was one case where the Doe was innocent but he paid MM because his child had done the downloading without his knowledge. If you were to argue that MM was complicit in the torrenting as an alternate revenue stream,evidenced by their long term monitoring and monetization while failing to order a takedown, could they be held liable for distributing pornography to children?

    If a doe said his child did it without his knowledge, can the child be held liable? Would the parent be liable? Would there have to be a seperate trial. Could MM be held liable for damages to the parents reputation (say they lost a classified federal job)?

  7. Curious says:

    Sorry, one more very speculative question.

    Lets assume that a parent found out their teenager had downloaded the file. A plantiff makes an unreasonably high settlement demand. Is there a way to go to a judge and admit the truth and ask for a judgement so as to avoid the piling on of legal costs? Maybe I’m naive, but I think if you told the truth to most judges, “yes my 13 year old downloaded these porn files without my knowledge”, you’d end up with a judgement a lot less than the $10,000-$20,000 that MM is asking.

  8. Curious says:

    by the way, there are two separate posters using the name curious, sorry for any confusions

  9. Curious says:

    By the way there are two separate posters using the name curious, sorry for the confusion

  10. Mitch Stoltz says:

    Jordan, on what sites do you see these messages being conveyed?
    – “no one pirates anything on the internet”
    – “nothing could ever be proven in court”
    – “none of theses case could ever be taken to trial anyway”
    – “everyone who gets sued in a torrent case is an unsuspecting victim forced to settle because it’s the cheaper route.”
    – “all the John Does are victims”

    Which attorneys have “file[d] a motion based on the conduct of say Prenda, but the plaintiff is actually Malibu?”

    Unless you can show us otherwise, your readers will have to conclude that these are strawman positions, not messages actually being conveyed by any reliable source, or by any defense attorney in a BitTorrent case.

    Giving clients an accurate picture of BitTorrent litigation has to include some thought about the economics of trolling. The RIAA had millions of dollars to pour into a litigation black hole to try to deter file sharing – they made no profit from suing uploaders, and they expected none. None of today’s trolls have that kind of cash to blow. So the shift away from 1000-Doe suits towards individual suits does indeed mean that the plaintiff will likely have a stronger case against the defendants they choose to name, but it also means that trolls can target far fewer people than they could in 2010. And just because Lipscomb can build a case against a handful of Does, or even a few dozen, doesn’t mean that he or another plaintiff’s lawyer has the resources to build cases against every one of the thousands of people who have received demand letters. Trolling on a mass scale only works if enough people settle, and no plaintiff will pay to bring dozens of weak cases to trial. So in some circumstances, ignoring a demand letter may be the best course of action for some people. That’s not to say that ignoring a summons is ever a good idea, but again, I challenge you to point out where “on the Internet” you saw an attorney suggesting that people ignore a summons.

    I agree with you that lawyers need to give their BitTorrent defense clients the hard truth – as long as it’s the whole picture. Meanwhile, others are going to go on working to make sure as few innocent people as possible find themselves in need of a BitTorrent defense – including by shining a light on the tactics of BitTorrent plaintiffs, whether you want to call them trolls or not, and yes, through impact litigation, though hopefully on better facts than the Thomas and Tenenbaum cases. Innocent people should not be paying a “relatively nominal sum” of around $4,000 to avoid depositions and public accusations involving hard-core porn – and yes, Jordan, there are innocent people being victimized, and they, too, need advocates.

    • “Which attorneys have “file[d] a motion based on the conduct of say Prenda, but the plaintiff is actually Malibu?””

      Off the top of my head, because someone just Tweeted it to me:

      http://ia601608.us.archive.org/33/items/gov.uscourts.insd.44724/gov.uscourts.insd.44724.23.0.pdf

      (A lot of that motion looks familiar… huh…)

      “Jordan, on what sites do you see these messages being conveyed?”

      It’s more of the aggregate – the sum of a whole. Everyone reports on the stories where a case is dismissed, or joinder isn’t help up. No one reports on the cases where it’s not. (wit some exceptions).

      I analogize it to lawyer advertising. Under the RPC, we’re not allowed to only post about cases that we win, because it gives potential clients the impression that we win all our cases. Similarly, when all the copyright blogs only post about copyright troll losses, you get the idea that all the cases just get dismissed or severed.

      In my opinion, people are only getting 1/4 of the real story. I think the Bellwether Trial is the first case that was widely reported on where a copyright holder won, and then much of the press on it was “it wasn’t REALLY a win.” (You want specifics on that? Read e.g., John Whitaker’s blog).

      http://copyright.infringementadvisor.com/2013/06/bellwether-trial-why-it-was-bust.html

      “Giving clients an accurate picture of BitTorrent litigation has to include some thought about the economics of trolling.”

      You could say the same thing about any plaintiff’s litigation. I did insurance defense for awhile. In the vast majority of cases, everyone exchanges discovery and then the case settles for something reasonable. 99% of the cases never see the inside of a courtroom. My firm tried 6 cases in a year and that was considered a significant amount.

      Does that mean we couldn’t try all the cases that we settled? No. It just means that trying them would have been a waste of time and money, because after depositions they’re usually obvious.

      But here is where it gets interesting. In an insurance defense case, your client is covered up to the policy limit. So if we decide to take a case to trial, and the plaintiff gets a $50k verdict but the policy is $100k, it really means nothing to the insured. If the carrier wants to force it to trial, they are on the hook for any excess verdict beyond the policy. So even if we tried a stupid case and took a bath on it, at the end of the day it’s not the end of the world. You can try some questionable ones if the carrier feels lucky.

      But copyright infringement defendants typically don’t have insurance coverage. So if you decide to gamble and “take it to the mat”, you’re putting your client’s assets on the line – at $750k per infringement plus attorney’s fees.

      Is it really a good idea to gamble with your client’s financial well being, just because you think forcing every plaintiff to try their case will put a cog in the wheel? Unless you have a great case you’re confident you will win at trial, why would you put your client into harm’s way? Over a nominal amount of money? To further the cause…?

      And truth be told, about 99% of these torrent cases should never see the inside of a courtroom from a defense side. Because yeah, a lot of people did it. You can’t turn chicken shit facts into chicken salad at trial.

      “I challenge you to point out where “on the Internet” you saw an attorney suggesting that people ignore a summons.”

      Heh. The calls I usually get (wish I could name names):

      “I read on the internet (or “I talked to some lawyer who read on the internet) that these cases are bullshit. Um, today the sheriff showed up at my door. Now what? Can’t I just file a motion to sever and they’ll go away?”
      “You do know that every single case filed here in the Eastern District of Pennsylvania has denied motions to sever, right?”
      “What?”
      “Yeah, it’s different from District Court to District Court. Kind of hard to explain.”

      Even Prenda was serving people here in EDPA before the Prendapoclypse.

      I applaud SJD and DTD – they admit they have an agenda, and a bias. That’s fine, and opinion commentary is the lifeblood of the First Amendment. Nothing wrong there, and they don’t have a duty to anyone except to write about whatever they want. At least you know you’re getting admittedly biased opinions when you read their blogs.

      But I expect the EFF to paint a more realistic picture. As much as I chide you, Mitch, I consider the EFF to be a good and reputable organization. They are just very off-base when it comes to the bittorrent cases.

      The realities of the Copyright Act, and actually representing someone effectively, are very different than the narrative.

      “Innocent people should not be paying a “relatively nominal sum” of around $4,000 to avoid depositions and public accusations involving hard-core porn – and yes, Jordan, there are innocent people being victimized, and they, too, need advocates.”

      I agree that innocent people shouldn’t pay anything on a claim. In my experience usually they don’t. I have a standing offer to represent any innocent in PA or NJ on a contingent fee. This means no bittorrent on their systems, and an interview with all their family members, and affidavits that no one in the house did it. No one has ever taken me up on my offer. (I wish they would).

      More importantly, this is what confuses me about what you are saying. Most lawyers conduct themselves with professionalism. Even plaintiffs lawyers.

      What you’re saying is akin to “All the lawyers representing plaintiffs are filthy ambulance chasers who will do anything to extort a buck from anyone.”

      It concerns me that you have decided that every plaintiff’s lawyer representing a copyright plaintiff is a scumbag who will take money from anyone and victimize innocent people. It’s like you believe that we live in a world of “good guys” and “bad guys”, where all the plaintiffs lawyers chase ambulances and all the good guys represent noble defendants.

      In my experience, many of the plaintiff’s lawyers in torrent litigation are also professionals. (even Prenda had some good guys as local counsel). You can actually get cases resolved with a telephone call and an affidavit, if it’s warranted. Obviously, some of the less experienced lawyers are told that they may want to vet their client a little bit better before saying “He’s totally innocent!”, because it kinda looks bad that someone downloaded about 70 movies from that IP address.

      In any case, when you couch it in terms of all these innocent people being shaken down by big evil mean lawyers regardless of their culpability, I don’t think that’s true. The plaintiffs lawyers are just people representing their clients to the best of their ability, which is exactly what they should be doing.

      This isn’t a world of “us” and “them”, Mitch. At least I don’t see it like that.

      As lawyers, we try to do the best we can for our clients, regardless of what “side” we’re on. Even the plaintiffs lawyers can be decent, reasonable people. Imagine that…

      • FormerDoe says:

        Jordan,

        Of course, not every plaintiff’s lawyer representing a copyright plaintiff is a scumbag, but we’re mainly talking about MM and Prenda here. I may have missed your take on it somewhere, but you seem to remain silent about the unethical tactics used by MM and Prenda to pressure Does. My main disagreement with you, however, is in saying that these particular lawyers are “doing the best they can” for their clients. As someone who has a background in both business consulting and IT security, if X-Art came to me asking what they could do to stop people from pirating their material, mass lawsuits would not be my recommendation. First, I’d explain the techniques we could use to find the root of the problem: the uploaders/seeders (a lot more I could say about this… bizarre that X-Art doesn’t use watermarking when it appears there are only one or two prime culprits). Second, as a “mom and pop” porn company trying hard to stake out a reputation of being higher quality and “classier” (for lack of a better term) than the usual competition, I’d counsel against the lawsuit strategy due to reputational risk. Pornographers already have an uphill battle on the reputation front, and when enough stories about what X-Art/Malibu has been doing get out… it will only confirm people’s prejudices. Let’s face it, the penalties for infringement are outrageous. So think of when ArsTechnica publishes a story that gets picked up elsewhere about someone sympathetic having their entire savings taken by MM for downloading a few movies… (lots of other dimensions to reputational risk here, such as MM’s unspoken leveraging of the threat of revealing porn use might make current customers very uneasy about who they’re dealing with). Could take awhile, but there’s a high chance of this not ending well for X-Art’s reputation. I guess they are hoping word somehow gets out to not download X-Art videos before that happens? The most charitable interpretation of Lipscomb’s actions that I can offer is that maybe he hasn’t thought much about the best options for his client and only knows legal options (“when all you have is a hammer…”). For sure, I don’t know the answers either, but any lawyer who single-handedly pursues a business and security/digital forensics strategy they came up with on their own (which seems to be the case with MM) is probably not serving the best interests of the client.

        How it stands after all these MM lawsuits: Nothing has been accomplished for X-Art (as Colette said in the Bellwether), but Lipscomb has likely become very wealthy. I have a hard time understanding how you don’t buy the most obvious explanation of whose interests are being pursued here.

        I do want to say thanks for continuing to provide your valuable opinion on these issues. Sites like DTD and FCT (and the people that read them) are lucky to have a lawyer like you who is willing to keep commenting.

      • Thanks for your comment. All good points.

        This is the only Malibu case I have ever handled. I’m not aware of the tactics they use when trying to settle these cases with other Does. That didn’t happen in this case.

        What Prenda did was abhorrent. From start to finish. An absolute disgrace on the profession.

        But you can’t impute Prenda’s behavior to other law firms. That isn’t fair.

        I am in the middle when it comes to these cases. I do believe that if someone downloads a copyrighted work, they should have to pay the owner something, even if they did not seed it. I do not believe these cases are being picked out of a hat, either.

        If copyright litigation is a revenue stream for content producers, so be it. People are also downloading their content at an alarming rate, which they should be paying for. I think content producers are entitled to compensation – not just to having people stop doing the wrong thing.

        Perhaps it is because I get angry when people ripoff my blog. I’m happy to let people use it for commentary, which is why I use a creative commons license. But I don’t appreciate it when other lawyers plagiarize my articles and try and pass them off as their own. I put a lot of time into writing this thing, and when someone takes advantage of the fruits of my labor, I don’t appreciate it.

        In an ideal world, there would be a copyright small claims court. This would allow smaller content producers to get into court, as well as not having to drag individuals into expensive and punitive federal litigation.

    • tl;dr:

      “yes, Jordan, there are innocent people being victimized, and they, too, need advocates.”

      Find me an innocent Doe in PA or NJ. I’ll do it on a contingent fee. This means no one in the house did it, and there is no pirated material on their computers. (because for the reasons I explained above, “I pirate a bunch of stuff just not THAT stuff” is kind of a sucky trial strategy. And yeah, people perjure themselves). I would gladly front the time and costs for that kind of PR. I just can’t find anyone to take me up on it.

      That said, I’ve represented most Does on a low or pro bono basis. But I have yet to come across anyone who didn’t admit that they did it, or someone in their house did it, after asking the tough questions and explaining how the civil discovery process works. I do my best to help them go on with their lives. I don’t get any press from this, but it’s the right thing to do from time to time.

    • Curious Number 2 says:

      Hi Mitch,

      Since you work with the EFF, and have a wide range of knowledge on Torrent cases, do you agree that a finding of infringement is not dischargeable in BK? I read up in places that it needs to be malicious and that malice is near impossible to prove without a pattern of warnings and repeated lashing out by the defendant. Many of the culpable parties have little to no assets in some of these cases, so a BK could absolve the debtor from all debts, but there is a big line between lawyers of the opinion that it is not dischargeable in 526a and those who say it can be done in their opinion. Any input you have would be great.

      • Mitch Stoltz says:

        Curious,
        I can’t give you legal advice, but here’s the law as I understand it. Judgments are not dischargeable in bankruptcy if the conduct was “willful and malicious.” That’s not the same standard as willfulness under the Copyright Act, and the bankruptcy court will make its own determination, which will probably depend heavily on the facts.

      • Mitch Stoltz says:

        I should add, anyone who says definitely yes or definitely no is not to be trusted. If you need an answer for a specific situation, you should talk to a lawyer privately.

      • Mitch is correct.

        It will depend on the specific facts of the case. Just because an infringement is deemed “willful” under the Copyright Act does not necessarily mean it is a “willful and malicious injury” as defined as by the Bankruptcy Code. It definitely could be a “willful and malicious injury”, but it might not be in some circumstances.

        You should chat with a bankruptcy attorney in your jurisdiction about this issue privately. Preferably one with some background in intellectual property litigation. “Willful and malicious injury” is also interpreted differently in different circuits, so it’s important you get your information from a bona fide attorney rather than the internet.

  11. […] June 16 followup: Talking Torrents: Some Thoughts on Prosecuting and Defending Bittorrent Cases; […]

  12. Kind of a Big Deal says:

    Why do you keep talking about the “civil discovery process” like it’s some kind of family law case in a state court where you can issue interrogatories and discovery requests as soon as a petition is filed? This “civil discovery process” nonsense is SHILL talk. Read Rule 26 of the Fed. R. Civ. P. Add to the nexus of antiquated laws Judge Wright mentions the Federal Rules of Civil Procedure and its delayed disclosure and discovery provisions. Malibu Media has “outmaneuvered the legal system.” Your ignorant generalizations and anonymous commenters proclaiming what a panda litigator you are shillishly suspicious, Bubby. So far you have failed to pass the SHmeLL tEsT, joey.

  13. James says:

    Well, this is my 2 cents. I just got hit w/ my first “Copyright Infringement Notice” from my ISP. Not sure if I’ll end up a Doe at some point or not, but I thought I would weigh in on this issue. First, I have been downloading movies for years. I download 3 or 4 movies a day and have been for some time. I throw them all on external hard drives connected to my main desktop that I then share via SMB/CIFS to an XBMC home theater pc connected to my tv. I’m more or less addicted to downloading movies. The fact is, I download 1500 movies a year, and I rarely watch any of them. I may watch 5 movies a year that I have downloaded. XBMC gives me the plot line of all the movies in my collection, and based on reading the plotline from IMDB and its rating on my xbmc, I usually determine that the movie sucks and don’t watch it. I don’t download movies to watch them. I download them just to download them. I do not seed from my bittorrent client. The infringement notice alleges that I do because it lists the file, my ip, and the port number. The thing is, I’m a computer tech and have a firewall up between my desktop bittorrent client and the internet. I don’t have the bittorrent incoming port forwarded at my firewall. So, they could not connect to that port to download anything from me even if they wanted to. I download, but I don’t upload. So, I think if I do get listed as a Doe, by rights, they couldn’t allege any ‘damages’ from the distribution of these materials since I do not distribute them, and they can’t, by rights, claim any personal damages that I have stolen from them. The fact of the matter is this: If I didn’t have internet, and I didn’t download the movies, I wouldn’t have bought the dvds anyway. So, they would have got no money from me anyway. How can they claim that I have stolen from them when, a)I seldom watch what I download b)I don’t distribute what I download and c)I wouldn’t have bought it anyway. Why do I want to pay a netflix or hulu plus subscription, pay for a movie, and not be able to download a copy of what I paid for? If I pay for some good, I want to have a physical copy of it. So, in the scenario of netflix, if I have a netflix account, and I’m paying to watch a movie via that subscription, I feel that, by rights, I bought it, and I should be able to have a physical/digital copy of what I purchased. I might buy more dvds if 98% of the movies didn’t suck, and if they didn’t charge $20 for every dvd. What the movie studios are doing is putting out crap that people WON’T buy and making money off them by charging the Does thousands of dollars for movies they likely a)haven’t watched and b)wouldn’t have bought even if they hadn’t downloaded it. So, the movie studios are basically claiming damages when there really is no damage to the movie studio. The fact is, absent the ability to download the movie, they probably wouldn’t have spent the $20 for the dvd anyway. So what’s the difference if the person downloads the movie or not? If they didn’t download it, they probably wouldn’t have spent money on the dvd. So the movie studio would have gotten no money either way, and the fact is, the person who downloaded it, probably never watched it anyway. The movie studios really have it made. They spend $30 million making a movie, make $100 million at the box office, another $30 million in dvd sales, sue the downloaders for thousands of dollars a piece, and syndicate their movies for 50 years and make revenue off the syndication. They act like they’re the victims, but the damage they inflict on the families of the Does is far more than the damage the Doe ever inflicted on them by downloading movies. However, like anything, this just goes to show what happens when people with money buy the politicians. They’re allowed to charge exorbitant prices, screw us, and leave us with no recourse but to bend over and take it, while giving themselves the ability to do whatever they want to us. Big business pays the politicians to pass free trade agreements, and tell the politicians to tell us it’s so we can export more of our stuff to the world when the only thing they intend to export is American jobs overseas to exploit 3rd world labor rates. They monopolize our domestic industries to where the American people can’t import food or drugs from foreign countries. You could go to the same plantation Folgers gets their coffee beans from, and you’d be stopped and have them taken from you at customs, as a regular citizen, but Folgers is allowed to bring in those coffee beans from the same place you tried to. You can go to jail for importing cheaper meds from Canada, but big pharma can import Canadian pills, slap their label on it, and sell it back to you for 50 times what they paid for it. There is so much wrong with this country, and it’s because the people with money have bought this government and used it to fuck the rest of us in the ass.

  14. Studying Law says:

    Great post! Been reading a lot about these kinds of cases. Thanks for the info here!

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