Copying music, movies and software over the Internet using BitTorrent is now quite common. Sandvine recently posted information on the amount of internet traffic being used by top apps, and BitTorrent was ranked # 1 upstream app, # 4 downstream app, and # 4 overall app behind Netflix, YouTube, and HTTP. What’s worse is that many people don’t even know that it is illegal to use BitTorrent or other file-sharing programs to copy content. Given this background, it should come as no surprise that copyright holders have become increasingly aggressive when it comes to going after Internet file-sharers.
While file sharing lawsuits started several years ago based on music sharing on services like Napster, Grokster, and LimeWire, the vast majority of massive copyright lawsuits now center on BitTorrent. Torrent lawsuits generally take the form of a copyright holder suing numerous “John Doe” or “Doe” defendants. The defendants are named John Doe because the copyright holder only knows them by their individual IP addresses. However, once litigation has started, the copyright holder may request the Court’s permission to issue subpoenas to the Internet Service Providers of the various Doe Defendants in the case. Subpoenas to ISPs will look for identifying and contact information for the Do’s in the case, including the name and address of each Do, and generally the phone number and email address.
If you’ve received a subpoena letter from ISP informing you that your information will be released to a massive copyright plaintiff in the near future, chances are you and your family are under enormous stress. Additionally, there is a lot of conflicting advice on the Internet, most of it posted by non-attorneys or by attorneys who have handled few or none of these types of lawsuits. Also, most online sources do not provide practical advice. Below is an action plan that I recommend to clients, and hopefully it can help them resolve their copyright lawsuit.
1. Don’t ignore the letter of summons. Make no mistake about it – you have been charged with copyright infringement by copying content over the internet, and the copyright holder has filed a lawsuit. This is no laughing matter. There are a lot of bad advice on the internet stating that you can simply ignore a subpoena letter from the ISP. However, non-compliance judgments of more than one million dollars ($ 1,000,000) have been awarded in multiple file-sharing lawsuits in which Does chose to ignore the ISP’s subpoena letters. Ignoring an ISP citation letter can literally ruin your life – don’t do it.
2. Act quickly. Take the ISP’s letter of summons seriously and get to work right away. In each case, the key parameter of your action plan is whether you will fight the claim or settle. You will need to determine this prior to the date your information is released by your ISP to the copyright holder. In particular, unless the copyright owner has been prohibited from listing it publicly, the copyright owner will be able to do so once they have your information, giving the copyright owner additional leverage. about you (especially if the content you are accused of copying is pornographic). Similarly, obtaining information on file sharers is costly for copyright holders – it requires a successful subpoena. Once your name is “out there”, a second copyright holder is much more likely to decide to go after you.
3. Get the facts. The first step in determining whether you want to fight the case or settle is to determine whether the allegations that have been made against you are true. Here is a checklist for your research:
General background questions
- Who are the computer users in your home?
- Of all computer users, are any of them under 18 years of age?
- Do you or someone else in your household copy content over the Internet?
General IT questions
- What are the make and model of your home computers, including desktops, laptops, servers, smart TVs, gaming rigs, digital media players, including DVD players, Blu-Ray players, game consoles games, portable game devices, smart devices? phones and tablets.
- Is there a BitTorrent client installed on a computer in the house? If so, which ones?
- Is there any antivirus software installed on any computer in the house? If so, which ones?
- Who is your broadband Internet service provider?
- Who is your cable or satellite service provider?
- Who is your wireless service provider?
Questions about the network
- Is your network fully wired or is there a wireless router?
Questions about the wireless router
- What different networks are configured for wireless access? For example, it is common to configure a “full access” network and a “guest” network.
- Does each network have a password or is it open?
- For each network with a password, who knows the password?
- Does the router keep a log of network access and show any unexplained activity?
Based on your research, you should put together a picture of what actually happened. Did you or someone in your household use BitTorrent to copy copyrighted content? If so, who did it? Could your computer have been hacked? If so, do you have evidence to back it up?
4. Contact an attorney. A qualified attorney can explain your options in much more detail than a short article like this one. Also, if you decide to negotiate a deal, an attorney can arrange for your identity to be kept secret from the copyright plaintiff. Most importantly, a trained attorney can offer guidance on the correct approach to take with your case.
Ideally, you will want to contact an attorney who (1) has handled several of these lawsuits, (2) is capable of litigating a case rather than simply “negotiating a settlement”, and (3) is licensed to practice in your state and in the United States District Court in particular where you live.
First, file-sharing cases are, in essence, riddled with copyright infringement. Most attorneys have never and will never handle a copyright infringement matter and are unaware of the particular idiosyncrasies of copyright infringement claims. Consequently, an attorney who handled a personal injury claim for someone you know is unlikely to be the right choice to handle this type of claim. The same is true for an attorney handling DUI or divorce claims.
Second, many intellectual property attorneys who are familiar with copyright law rarely or never litigate cases. Consequently, they will not have an idea of the real dynamics of your case, such as the experience of the other party’s lawyer, the amount of a reasonable settlement, etc.
Third, a lawyer can only litigate a case in the courts to which he is admitted. For example, the copyright litigation attorneys at my firm are admitted to the United States District Court for the Northern District of Illinois and the United States District Court for the Central District of Illinois. While most file sharing cases are resolved without major litigation, your case may require major litigation – if your chosen attorney is not admitted to the Court where the case will be tried, you will need to hire a local attorney, that just add to your expenses.
5. Have your attorney pursue a lawsuit. Once you know what the copyright plaintiff wants, you and your attorney can determine the best approach to take with your case. In particular, if the demand is low enough, consider paying it or asking your attorney to keep negotiating. On the other hand, if the demand is high, your attorney can advise you if you can win your case. You should know that litigating a copyright case is quite expensive. Many companies, like mine, offer ordinary families who are forced to litigate these claims advantageous terms so that they can fight a claim if necessary. Also, if you win your claim, the copyright plaintiff may be forced to pay your attorneys’ fees.
If you have received a subpoena letter from ISP, there is no doubt that you are under a lot of stress. You certainly want to resolve the situation as soon as possible. However, it is important to approach this decision carefully and unemotionally. I hope the action plan I outlined can help you achieve this.