Talking Torrents: Some Thoughts on Prosecuting and Defending Bittorrent Cases

Many 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 made 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.

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…

[Editor’s Note]: I now represent the plaintiffs in these cases. Please do not ask me for help defending one of them or for legal advice. Do not send me anything confidential. If you need a lawyer to help you with one of these cases in Pennsylvania, you can contact Isaac Slepner or Leonard J. French.