This week Marc Randazza and I had the pleasure of trying the first ever bittorrent case to reach a verdict. Many thanks to my trial co-counsel, Leonard J. French and Ron Smith. Credit is also due to Charles Thomas and Thad Gelsinger, whose clients settled before trial. Finally, kudos to Malibu Media’s counsel, Keith Lipscomb and Chris Fiore, who demonstrated that they are exceptional litigators and trial lawyers. It was a hard fought battle among worthy adversaries.
If you are interested, you can listen to the Bellwether Trial in its entirety here:
Part 2 – Trial Audio (John Doe Defendants, Judge Baylson’s final rulings)
(I can’t figure out how to embed it.)
So… what is this all about?
Last October, Judge Baylson ordered Malibu Media to take a bittorrent case to trial. Some had concerns that a bittorrent case could never be tried successfully in court.
That proved to be wrong… on June 10, 2013, Malibu Media tried three John Does accused of copyright infringement to a verdict.
A $112,500 verdict was entered against John Doe 16, in addition to attorney’s fees and costs. The judgment will be close to $500,000 once costs and attorney’s fees are entered.
No money damages were entered against Doe 1 and Doe 13 because they settled before trial to avoid an entry of a damage award.
Doe 16 was accused, and ultimately found guilty of, very serious perjury. In discovery he turned over a hard drive that had been wiped clean, with evidence planted on it to look as though it were operational. Malibu proved that Doe 16’s hard drive had been wiped, and that evidence had been planted on it. Doe 16 later admitted his wrongdoing and confessed after the court appointed its own expert. (it is a lot more complex than that, but you get the gist).
Doe 1 denied downloading the movies in a civil deposition, but later recanted.
Doe 13 never denied infringing on the copyrighted material, but made legal arguments as to why he should not be held liable. The court said Doe 13 had a legal right to do that.
At the end of the trial, the court rejected the legal arguments and found in favor of Malibu Media.
Now that the trial is over, there are many things we can take away from the Bellwether Trial for lawyers, Doe Defendants, and people who are generally interested in copyright law. These are a few things I thought were notable:
1. Porn is copyrightable.
Judge Baylson unequivocally held that porn is copyrightable, even if some people may find it offensive or distasteful. (just like they may find this blog). According to the court:
“It is clear … that, the copyright laws are content neutral. And, there is no distinction between sexually explicit material and a work that is purely in print … as far as the copyright laws are concerned. It’s a work created by an individual and it’s subject to the copyright. It doesn’t matter what the content is. So pornography and adult films are not everyone’s taste, but I cannot as a judge neglect the fact that the copyright laws are content neutral, or have any prejudice or distinction based on the content of the work product of Malibu Media.”
Porn is copyrightable. Period.
2. Not everything you read on the internet about bittorrent lawsuits are true: Malibu Media has reliable evidence, people do pirate stuff off the internet (at an alarming rate), and bittorrent cases can absolutely be proven in a court of law.
While it’s fun to read about the little old lady who gets hit with a bittorrent lawsuit, many, many people are actually pirating stuff. For every grandpa who is blind and never seen porn in his life, there are millions upon millions of people everyday who choose to pirate copyrighted material off of bittorrent. IPP Limited’s testimony about the amount of copyrighted material being pirated is staggering.
The evidence to catch infringers is reliable, too. At trial, two witnesses from IPP Limited testified about how their software works. Their testimony was corroborated by an expert witness, Patrick Paige. Paige legally downloaded a movie which was assigned a hash value. He then put it in a bittorrent swarm, which IPP Limited was able to trace back to his IP address.
All of the Does (eventually) admitted that the evidence is reliable, too.
So, if you have been targeted in a bittorrent lawsuit, there is an exceptionally high chance that the material was infringed on using your internet.
3. “But… an IP address is not a person!” has never been a good argument in court, and it never will be.
Imagine this: Saturday night around 11:00pm, a drunk driver sideswipes a pedestrian. The pedestrian is hurt pretty badly. A witness catches the license plate of the car, but not much else. Naturally, the pedestrian sues the drunk driver in “Hurt Pedestrian v. John Doe.”
John Doe, the owner of the car, shows up to court and says: “A license plate isn’t a person!! This lawsuit should be thrown out!!! This is outrageous!!!”
Does the lawsuit get thrown out?
The plaintiff deposes John Doe. The lawyer asks who had John Doe’s car on Saturday night around 11:00pm. It turns out Doe’s son was driving it. The plaintiff turns around and sues Doe’s son (along with John Doe for negligent entrustment of the car.)
That is how the law works in a personal injury suit, and in a copyright bittorrent suit. I know you don’t want to hear that, but it’s the truth.
Even though an IP address isn’t a person, evidence that infringement occurred via that IP address is enough to get into court.
In the same vein, if you want to claim wi-fi hacking, or something similar, you need to have actual evidence for it. It’s not enough in a civil trial to say “My wi-fi could have been hacked, so the lawsuit has to be thrown out!” If that is the case, you need to show a jury evidence that your wi-fi was indeed hacked. Otherwise, testimony that your wi-fi could have been hacked is speculation and non-admissible.
4. Civil litigation is different than criminal defense. There are no secrets or surprises in civil litigation. You are not permitted to lie in a deposition or in court hearings. That is illegal.
“I didn’t do it! I have no idea what you’re talking about! I would never download porn!” (And even if I did do it, you could never catch me! I would just delete the evidence anyway! HA HA HA!)
If you know there is a lawsuit filed against you, and you destroy evidence, it is called tampering with evidence. If you tamper with evidence, and then lie about it under oath, that is called “perjury.” Both of these things are a crime.
Unlike a criminal case, in a civil case a plaintiff can depose you and ask you straight up – “Did you download the content?”
That testimony is under oath. If you lie, it’s perjury. The plaintiff can also search hard drives, depose neighbors, and test theories about wifi hacking.
Based on perjured testimony, Doe 16 had a six figure verdict entered against him, which will be close to $500,000.00 once you add in attorney’s fees and costs. And Doe 16 only downloaded 5 movies. Willful copyright infringement is not dischargeable in bankruptcy, either.
5. Many purported “bittorrent defense lawyers” get their information from the internet. It’s wrong, and they are morons.
“Oh, don’t worry, they could never prove their case! Just delete the stuff off your hard drive and offer them $75. They would never taken one of these cases to trial, and it would be impossible for them to do that anyway.”
“We’ll just file a motion to sever or to quash! As soon as you litigate these cases the plaintiffs run away and find new targets. They’ll never pursue you if you fight back.”
I’ve heard it everywhere. Usually from morons.
Lawyers – if intellectual property litigation is not your forte, I would urge you not to take on one of these cases. Civil litigation is entirely different than criminal cases. There are no secrets in discovery, and a plaintiff needs only to prove their case by preponderance of the evidence. This means if it is more likely than not that the defendant is the infringer, there could be massive penalties.
I know you’re not going to want to hear this, but if you downloaded a copyrighted work off of bittorrent and got caught, you should probably consider a settlement very seriously.
And yeah, you’re probably familiar with Judge Wright’s epic Star Trek Order. But here is the thing – not everyone that pursues a copyright claim against Doe defendants for copyright infringement is Prenda. Having now personally litigated a case from start to finish with Malibu Media, Keith Lipscomb, and Chris Fiore, you have my assurance that these guys are very good trial lawyers, and they can absolutely prove a meritorious bittorrent case at trial.
Where does this leave us?
– If you have been sued for copyright infringement, don’t ignore it. Hire a lawyer who actually knows what they are talking about. Settlement may very well be your best option. Sorry if the internet lied to you.
– How you should respond depends on who sued you. There is a big difference between say… Prenda and Malibu. Just because certain behavior has been inputed onto one copyright plaintiff does not mean it carries over to another.
– Do not destroy evidence or try and cover up what you have done. That will only make matters much, much worse. Stop the bleeding, hire a lawyer, and try and get it worked out.
– “Taking every case to the mat” can be a recipe for disaster. Keep in mind that Does are liable for attorney’s fees. If the plaintiff has a meritorious claim, only a fool will try and fight the thing for the sake of fighting it. Consider focusing on a reasonable settlement. If you downloaded the material, the goal should be to never see the inside of a courtroom.
– If you use bittorrent to download copyrighted material, STOP DOING IT. There is a real risk you will be caught, sued in a federal court, and ultimately forced to pay far more than it would have cost you to just buy the material in the first place. Don’t be a moron and pay for your content.
– If you’ve been accused but didn’t do it, and you’re willing to testify to that under oath and produce a copy of your hard drive – fight it like hell. Just as long as you understand that lying and perjuring yourself will cause way more harm than good.