Why I Hope You Get Sued For Copyright Infringement – A Response to the EFF on Maximum Statutory Damages

It’s Monday morning. Time to get pumped for the day. I click on my Pandora icon and a song comes on. I love Pandora One. It costs me about $50 a year, but I can stream music all day. At the gym, my living room, anywhere.

This song sounds good… Geometer by Slidecamp. Never heard of these guys before, but I can dig it. Let’s see if they’re on iTunes. Awesome. The entire album is available for exactly $7.92. That’s about two cups of coffee. I’ll bite.

BOOM – now the entire album is now on my iPad, my iPod, and my computer. I can listen to the song I want on repeat. Sweet. Gonna be a good day at the gym today.

For a second, I can’t help but think back to when I was a kid. There were two ways to listen to music – tapes and CDs. CDs sounded better, but you couldn’t take them into the gym because it skips. So you had to use tapes for any type of workout, and then listen to CDs in your house. After awhile, the CDs would get banged up, scratched, and useless. I think I bought Pearl Jam – Ten about ten times. To get a CD, you had to drive to Sam Goody and buy the entire album when all you wanted was one song. My bedroom had CDs spewed all over the place at any given time. And damn, I left my tape player on the bus again. Hopefully Ms. Gomez found it. It’s got my Green Day tape in there.

My how things have changed since then. Now any content I want is available at the click of a finger through Amazon, iTunes, or often directly from the producer’s website. It’s backed up in the cloud. MP3s don’t skip, and all the music goes to all your devices. And it gets better – movies, software, games, you name it, available in one click. No more braving the mall, no more Sam Goody, no more Electronics Boutique. Everything you want is available right here, right now, and for a fraction of what it used to cost. and if I break my computer I just buy a new one and all my music is back.

Welcome to the new millennium.

Talking Torrents: Judge Baylson Issues Final Memorandum Opinion on the Bellwether Trial; Kills Mass Joinder Torrent Actions

Today the Bellwether case officially concluded. Judge Baylson has issued his final memorandum opinion, found here.

Notably, you may recall that we filed a motion to dismiss at the outset of the case, arguing that all of the swarm are indispensable parties. Joinder is either proper or its not. The court rejected that argument and denied our motion.

Interestingly, the court’s opinion memorandum opinion issued today held that joinder is not approprriate in a bittorrent case:

I now believe that joinder of multiple defendants in a single complaint alleging copyright infringement through the use of BitTorrent technology is neither necessary nor appropriate. …  As I held then and believe even more firmly now, members of BitTorrent “swarms” are not essential parties for copyright infringement suits involving BitTorrent technology because the “swarm” is formed automatically by the software, and not by any actual association of these defendants. Moreover, there are downsides to allowing permissive joinder. As trial judges are well aware, a large number of defendants in a single complaint poses significant management problems and often delays disposition of cases. Further, joining multiple defendants allows the plaintiff to avoid separate filing fees, and also pressures individual defendants to settle because their costs of defending a multi-party case are likely to be larger than if there is only one defendant. For these reasons, and based on the record made in this case, I recommend against requiring joinder under Rule 19 and also against allowing it under Rule 20(a).

While this opinion will most likely end the era of massively joined bittorrent actions, I don’t think this is the end of torrent lawsuits. I suspect you will see more actions filed against individuals accused of massive infringement.

But absent massive joinder actions, is this the end of what is popularly characterized as “copyright trolling?” Does this mean that now plaintiffs will be more willing to take their cases to trial?

We shall see.

You may also recall that last year, I wrote an article suggesting that mass joinder actions may be better for individual John Doe defendants.

There is a lot going on in this opinion, and I’m sure you will all have interesting takeaways from it.

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…

Opposing Severance Is Now In Vogue – Using the Battlefield to Your Advantage in Bittorrent Litigation

Use the battlefield to your advantage. Do not simply charge the English heavy cavalry head on.

Back 100 years ago this July, Marc Randazza gained some attention for defending a bittorrent case a little differently. What was different? Randazza opposed severing all of the defendants. It was the first time anyone had opposed severance, as common knowledge dictated that one should always try and sever defendants in a mass bittorrent action.

The “anti-severance strategy” caused Randazza to get flack from Fightcopyrighttrolls and Ray Beckerman. Beckerman stated:

Said attorney has sued hundreds of BitTorrent users in the last year on behalf of copyright holder plaintiffs which raises the question of how and why he came to be making a motion, purportedly on behalf of a Doe defendant in that case, that clearly goes against the interests of the defendants in that case.

I mean, the ONLY way to defend one of these cases is to file a motion to sever, and a motion to quash, right? Right? That’s what the EFF said!!

Errrr… not so much. It looks like a few people owe Randazza an apology, because it’s becoming more and more apparent that severance may not be in the best interests of the Doe defendants in the current climate. In my opinion, it’s probably not in a Doe defendant’s best interest to sever a case in today’s climate.

Here is why.

Some truths and myths about bittorrent lawsuits

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

The call normally goes like this:

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

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

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

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

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

Talking Torrents: Frequently Asked Questions About Bittorrent Litigation

One afternoon you check your mailbox and notice that your internet service provider has overnighted you a letter. You open the letter and find it says you’ve been named in a lawsuit for downloading porn, movies, or music on the internet. Your internet provider says they’re going to turn your name over to a law firm unless you file a motion to quash because of a court order.

Uh oh. This doesn’t sound good.

Now what? What the hell is going on?

First, take a deep breath. It’s not the end of the world.

Now I’m going to try and explain what’s going on here…

Ok, first off, what is bittorent?

Bittorrent is a file sharing tool that enables peer to peer file sharing. It works like this: imagine if there were a big puzzle, and when that puzzle was put together, it creates a complete file (like a complete movie). Joe Smith might have part of the puzzle in Iowa, and then he might share a piece with Mark Jones in California. Everyone can reproduce the puzzle. So now, once its downloaded, Joe and Mark both have a full puzzle. They can then replicate it and give copies to their friends, kind of like in Star Trek. Except they are not replicating cups of Earl Grey tea, they are replicating movies, music, and porn. A lot of which happens to be copyrighted. Everyone who was sharing the file is allegedly part of the “swarm“. That is the nature of peer to peer file sharing.

In laymen’s terms, bittorrent is an easy way to download stuff off the internet. It’s typically used to download music, movies, and porn. It is the next generation of Kazaa, Napster, etc.