New Media Rights signs open letter sent to Congress regarding SOPA, PIPA, and internet freedom with 70 other groups

February 6, 2012

FOR IMMEDIATE RELEASE
Contact: Art Neill, Executive Director, New Media Rights, (619) 591-8870

On February 6, 2012, New Media Rights joined approximately 70 grass-roots groups, venture capitalists, entrepreneurs, human rights groups, communities of color, and Internet companies in sending a letter asking Congress to stop its work on intellectual property issues in the wake of massive public protests against the Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA).

 


February 6, 2012
U.S. House of Representatives Washington, D.C. 20515
United States Senate
Washington, D.C. 20510


Dear Congress:

We the undersigned groups align ourselves with the more than 14 million Americans who joined us in opposition to the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA). Together we participated in the largest online protest in American history (currently estimated at more than 115,000 websites) because we believe these bills would have been harmful to free speech, innovation, cyber security, and job creation. We want to thank the Members of Congress who shared our concerns and opposed these bills.

Now is the time for Congress to take a breath, step back, and approach the issues from a fresh perspective. A wide variety of important concerns have been expressed – including views from technologists, law professors, international human rights groups, venture capitalists, entrepreneurs, and above all, individual Internet users. The concerns are too fundamental and too numerous to be fully addressed through hasty revisions to these bills. Nor can they be addressed by closed door negotiations among a small set of inside the-beltway stakeholders.

Furthermore, Congress must determine the true extent of online infringement and, as importantly, the economic effects of that activity, from accurate and unbiased sources, and weigh them against the economic and social costs of new copyright legislation. Congress cannot simply accept industry estimates regarding economic and job implications of infringement given the Government Accountability Office’s clear finding in 2010 that previous statistics and quantitative studies on the subject have been unreliable.
Finally, any future debates concerning intellectual property law in regards to the Internet must avoid taking a narrow, single-industry perspective. Too often, Congress has focused exclusively on areas where some rights holders believe existing law is too weak, without also considering the ways in which existing policies have undermined free speech and innovation. Some examples include the year-long government seizure of a lawful music blog (dajaz1.com) and the shutdown by private litigation of a lawful startup video platform (veoh.com).

The Internet’s value to the public makes it necessary that any legislative debate in this area be open, transparent, and sufficiently deliberative to allow the full range of interested parties to offer input and to evaluate specific proposals. To avoid doing so would be to repeat the mistakes of SOPA and PIPA.

Sincerely,


106 Miles
Access
Access Humboldt
American Library Association
Amicus
Amnesty International (USA)
Art Is Change
Asana
Association of College and Research Libraries
Automattic
Canvas Networks
Center for Democracy & Technology
Center for Media Justice
Center for Rural Strategies
Cheezburger Network
ColorofChange.org
Consumers Union
Demand Progress
Democracy for America
Don’t Censor the Net
Electronic Frontier Foundation
Engine Advocacy
Entertainment Consumers Association
F2C: Freedom to Connect
Fight for the Future
Foundry Group
Free Press Action Fund
Free Speech TV
Hackers & Founders
Hattery
Human Rights Defense Center
Human Rights Watch
InSparq
Institute for Local Self-Reliance
Internet Archive
Learning About Multimedia Project
Main Street Project
Mayfirst/People Link
Media Alliance
Media Literacy Project
Media Mobilizing Project
Mom's Rising
Mountain Area Information Network
Mozilla
NAMAC
Native Public Media
New America Foundation's Open Technology Initiative
New Media Rights
NY Tech Meetup
OATV
OpenCongress.org
OpenGovernment.org
O'Reilly Media
Participatory Politics Foundation
PCUN Oregon Farmworkers Union
People’s Production House
Presente.org
Public Knowledge
reddit inc.
Reel Grrls
Save Hosting Coalition
SF New Tech
Startup Weekend
SV Angel
Teethie, Inc
Thousand Kites
Tucows Inc.
Twitpic Inc.
Women In Media & News
Women Who Tech
Women, Action & the Media
Women's Media Center
WordPress Foundation

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How Apple, Google, and your wireless carrier control your phone

You own your cellphone. So you should be able to do with it what you want, right? Wrong, unfortunately. Apple, Google, your wireless carrier, and others all control what you can do with your phone. They prevent you from downloading apps; they may remotely delete apps from your phone; they may even prevent you from downloading operating system updates necessary to use your phone.

Just how do they exercise this control, and how does it affect you? Read on to find out.


Gatekeepers: The Manufacturer of Your Phone's OS

Companies that control what you can do with your phone are called "gatekeepers." They determine what software (usually apps) you can install on your phone. With smartphones, one gatekeeper is the maker of your phone's operating system (Apple, Google, Microsoft, RIM). Apple is an especially zealous gatekeeper; it must approve all prospective iPhone apps before any (non-jailbroken) iPhone user can install the app on their phone.

Why does gatekeeping harm you? Well, it doesn't always. One virtue of zealous gatekeeping is that it helps protect your phone from apps containing viruses or malware. Nobody wants to download a new app only to find it renders her cellphone unusable.

But virtues come at a cost. A cost to the cellphone user, and a cost to app developers. One cost is in terms of unfairly rejected apps, apps the cellphone user cannot install on his cellphone because of the OS manufacturers' overzealous—and sometimes questionable—gatekeeping. Here, the developer loses because it expended resources in developing an app for sale, only to find out that it actually can't sell it. This can be a "serious blow" to the developer's business. And the consumer also loses because she lost the right to choose, and she can't use the potentially killer app.

A good example of this is Google's recently removing Grooveshark, a popular music playing app, from its Android Market for violating its terms of service. As the Electronic Frontier Foundation notes, Google "refus[ed] to provide an actual legal or policy basis for the [removal]." Without knowing the specific violation, Grooveshark effectively couldn't remedy it. Further, Google's silence only fuels speculation—maybe it removed the app "because it [would] compete with Google’s . . . soon-to-be-released cloud music service."

Another cost to cellphone users is effectively losing control over all apps on their phone. Apple, Google, and Microsoft all have the power to remotely remove apps from your phone. On the one hand, the purpose of remote deletion is usually benevolent: it "protect[s] users from malicious applications." But even with a benevolent purpose, remotely deleting apps is "always a little disconcerting" because once an app is on our phone, we feel like we own it—even if Google or Apple says otherwise.

More Gatekeepers: Your Cellphone's Manufacturer and Wireless Carrier

Google, Apple, Microsoft—all are gatekeepers. But they are not the only gatekeepers to your phone. Both your cellphone's manufacturer and wireless carrier are too.

Unfortunately, little good comes from them serving as gatekeepers. It often results in them prohibiting you from updating your phone's operating system.

Samsung, for example, recently "announced that its line of Galaxy S phones, one of the most popular Android phone models of 2010, will not get Google's latest version of Android, Ice Cream Sandwich." That's 10 million people missing out on the latest Android operating system because Samsung said so.

Another recent example comes from carriers of the Windows Phone. The OS had a glitch: the phone's virtual keyboard disappeared while users typed. And Microsoft released an update fixing this glitch. Given the severity of this glitch, I imagine most—if not all—users would want to install this update ASAP. Too bad they couldn't; their wireless carriers wouldn't allow it. The choice of updating was left entirely to the carrier. So the phones' users—the only people suffering from the glitch—had to continue suffering until their carrier allowed them to install Microsoft's update.

A third recent example comes from Verizon. Verizon is prohibiting its customers from using Android's new innovative feature Google Wallet. Though Verizon justifies their actions by citing security concerns, the actual reason may be more malevolent: Verizon is acting anticompetitively. Verizon is producing its own software that competes with Google Wallet, and it may be trying to force its customers to use its own product by prohibiting them from choosing Google's.

New Media Rights Can Help

All gatekeepers are different. The rules governing what they can and can't do depends on each of their terms. Further complicating this is the multitude of gatekeepers: your phone's OS manufacturer, your phone's manufacturer, and your wireless carrier may all control how you use your phone. This may make it difficult for you to discern your rights. 

But fear not! New Media Rights is here to help, both cellphone users and app developers. For users, we can help you understand just what are your legal rights, based on your specific circumstances. Feel free to contact us with your issue through email or give us a call at (619) 591-8870. 

We CAN'T actually track down someone's cell phone for you, and we CAN'T troubleshoot problems that you have with your phone. But we CAN offer advice on the legality of cell phone tracking, removals from your favorite app stores, and help understanding the laws that relate to your phone.

And for developers, we can offer guidance on the risks of developing apps for various OSs. We can also help you if your app was rejected from an app store—help you understand why it was rejected, and help you determine whether you have any recourse.

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Photo Credit - "The iPhone 4" by Jorge Quinteros released under a Creative Commons Non-Commercial, No Derivative Works, Attribution 2.0 License

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How mobile apps track and share your location and other personal information

You are being tracked. The tracking device is your smartphone. And the tracker? Apple and Google. And your cellphone carrier. And software companies. And countless other third parties. And shopping malls. Oh, and also potentially law enforcement agencies.

Just what, exactly, are these groups tracking? And why? Read on to find out.

For one, Cellphone manufacturers and carriers track your location, even when you explicitly told them not to via your phone’s settings. They track for largely two reasons. The first is relatively innocuous: They use the data obtained from tracking to improve their cellular service.

The second reason, however, is more inflaming: Money. Tracking your location allows these companies to make more money through selling advertisements. Because advertisers want to tailor their ads to the their target geographic, and they'll pay more to do so.

But the tracked data may include more than your location; it may also include how you use your phone, from the messages you receive to the photos you snap. The claimed reasoning behind this tracking is to "help customers understand how customers are using their devices." Notwithstanding this benevolent purpose, these companies are still accessing your important personal information details stored in your phone. Messages to and from loved ones; addresses of you and your friends; your photos.

All this tracked data is valuable; and not just to advertisers, but also to law enforcement agencies. Michigan police, for example, "sought information about every mobile phone near the site of a planned labor protest." That's every single person, regardless of whether the police linked them to any crimes. And the cumulative effect of all these illegitimate requests can be staggering. Sprint, for example, "received over 8 million personal information requests" from law enforcement agencies in a little over a year.

The point is, you should vigilant. You need to know both the technical details of your phone or mobile device (does it track you; can you disable tracking) and your legal rights (maybe you have a legal claim against these companies).  

Finally, you may be a victim of a malicious third-party who adds tracking software to your phone without you knowing. We've written a guide to the basics of how to identify and remove cell phone tracking software.

New Media Rights can help cell phone users understand what rights you are giving away when you click "I Agree" to installing an app.

We can also help App developers, many of whom often fail to provide an adequate terms of use and privacy policy, to understand best practices for disclosing how personal identifying information is collected and used to the users of your app.

Creating a proper terms of use and privacy policy can help avoid a growing amount of privacy class action lawsuits as well as potential fines from the FTC and other regulatory agencies.

IMPORTANT NOTICE!

We CAN'T actually track down your cell phone for you, and we CAN'T troubleshoot problems that you have with your phone.

But we CAN offer advice on the legality of cell phone tracking, removals from your favorite app stores, and help understanding the laws that relate to your phone.

Contact us here if you are a consumer or app developer with questions about location tracking.

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Our recent accomplishments: 2011

Summary

We want to update you, our community, on our recent successes and what the future holds for New Media Rights.  Since July, we have been supported by a grant from the California Consumer Protection Foundation (CCPF).

By partnering with New Media Rights, CCPF took a leadership role in ensuring that consumers and creators have a source of assistance for the difficult questions that arise with the use of the Internet, mobile applications, and other new communications technologies.  CCPF support has provided consumers / creators free, expert one-to-one assistance for digital rights issues, so CCPF should be recognized as an innovator in the digital rights field and we thank them for their support.

In addition to our free assistance, we have produced cutting edge guides addressing problems actually faced by internet users.  This educational material has already reached thousands and will continue to help people for years to come. Through our policy comments on the AT&T-T-Mobile merger (here and here) and other issues, we’ve communicated the issues that independent media creators and consumers face to policy makers.

We thank the CCPF, and our many generous individual supporters for supporting this important work.  

We particularly thank those who have recently supported us through our Founder’s program.  

We're trying to raise $25,000 by December 31. Please help us by donating to our Founders campaign here.

For other ways to support New Media Rights, visit this page.


Assistance requests: Our core services

By December 31, we will have helped over 260 individuals since July 1.

 
These inquiries represent creative projects, free speech, nonprofit services to local communities, and job-creating business ideas that may die on the vine without our assistance.

Personal stories from individuals we have assisted

A few individuals have been kind enough to share some basic details of their stories on our website. You can read a few of these testimonials below.

Maricar Camaya - San Diego based Documentary filmmaker had questions about Fair Use and using Creative Commons licensed content.

Dan Newman - Bay Area based Government Accountability Nonprofit, MAPLight, which connects legislative votes with money contributions, had questions about copyright.

Michael Petrelis - Bay Area based Blogger whose lawful content exposing an individual pretending to be a Syrian woman blogger in Damascus  was removed by a DMCA Takedown.
Read Michael's story

David Almilli - Local San Diego independent developer David Almilli fought and won against game giant Hasbro’s unwarranted takedown of his mobile application.
Read David's Story


Policy Work

A major victory this year was being part of the efforts to stop the AT&T - Tmobile merger.  We were one of the first groups to request that the California Public Utilities Commission review the AT&T - Tmobile merger.  After the CPUC opened an investigation we submitted comments to the proceeding.  You can read are CPUC comments here and here, and our petition to the FCC to deny the merger here.

We offered a unique perspective of the internet users and innovators we serve, illutrating how this merger would have serious effects on innovation in the wireless and mobile application space, mobile broadband access, network discrimination, telecom jobs, and consumer protection including prices and choice of wireless carriers.  

Guides

We created three long-form guides and seventy-two shorter-form 1-3 page guides geared toward highly specific questions about copyright law that we regularly receive.

Below are details and links to these guides:

1. Filesharing lawsuit guide
We designed a guide for Internet account subscribers whose IP addresses have been identified in recent mass filesharing lawsuit against over 200,000 individuals.

2. Parental liability for the online acts of children guide
This guide explains liability of parents for various actions of their children online, particularly filesharing.

3. Copyright guide

We created 72+ short-form (1-3 page) guides answering specific questions that consumers and creators often have about their rights and responsibilities online under copyright law.  See Addendum A for direct links to all 72 short-form guides.

Media & Outreach

We also did a number of interviews with the media, and got out into the community giving workshops at various venues including San Diego Media Arts Center, San Diego City College, Ansir Innovation Center, and The Online Media Legal Network's conference Media Law in the Digital Age.

Looking Forward

New Media Rights accomplishes so much with a small staff of two full-time employees along with a few interns, volunteers, and fellows.  We are grateful to the dedicated professionals who make this organization what it is, and the individuals and organizations who support our work.
 
Right now, we're working towards raising $25,000 and we need your help. Donate to our Founder's campaign today and we will put your name in lights as a Founder of New Media Rights.
 
Click here to donate to New Media Rights now.

We look forward to a new year of helping hundreds of creators, internet users, and innovators make there big ideas become reality.  You can count on us to be tireless in making sure that you and  the millions of other internet users can preserve the internet as a venue for new voices, new ideas, and a better future.

 

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Stop the Stop Online Piracy Act

Congress is once again considering passing new laws regulating piracy on the Internet. The House of Representatives is currently considering passing the Stop Online Piracy Act. But many oppose the Act—and you should too. If it becomes law, as one Congresswoman exclaimed, it “would mean the end of the internet as we know it.” Similarly, Internet companies like Google and Facebook also openly oppose it. The Act even prompted online protests by Tumblr, Reddit and Firefox. Why do so many oppose the Stop Online Piracy Act, and why should you be concerned? Read our coverage to find out.

What the Act Does

Basically, the Act creates a mechanism for both the U.S. Attorney General and private parties to target websites hosting infringing materials. For the Attorney General, the Act grants it the power to both block access to it and cutoff its financial resources. But for private parties, the Act grants them only the power to cutoff an infringing website's financial resources.

The Legal Language

Section 102 of the Stop Online Piracy Act allows the U.S. Attorney General to block access to websites that "commit[] or facilitat[e] the commission of [trafficking in counterfeit labels or goods], [criminal infringement of copyright], [unauthorized fixation of and trafficking in sound recordings], [unauthorized recording of motion pictures], or [violation of trade secrets laws]." And after obtaining court approval, the Attorney General can then force certain types companies to take "technically feasible and reasonable measures" to take certain acts. She can force Internet service providers to "prevent access" to the site, Internet search engines to not link to the site, payment network providers (such as PayPal) to prevent payment transactions with the site, and she can force Internet advertising services (such as Google AdSense) to not provide advertisements to the site. Similarly, Section 103 of the Stop Online Piracy Act grants some of these same rights to private parties. It allows private parties to cutoff funding from websites that "offer[] goods or services in a manner that engages in, enables, or facilitates . . . [copyright infringement or circumvention or trafficking of stolen goods]". It also creates a notice-and-takedown system similar to the DMCA. This means that after a private party claims a website enables or facilitates infringing content, the offending site can either remove the offending material (and escape liability) or file a counter-notification. If the site doesn't remove the offending material, the private party can sue the website. The private party has the same two remedies towards payment network providers and Internet advertising services as the Attorney General has under Section 102.

Why You Should Be Concerned

We could criticize the Stop Online Piracy Act at length. But three of the most glaring criticisms are the Act's breadth, risk of abuse, and their resulting consequences. The Stop Online Piracy Act is incredibly broad. Whenever a website enables or facilitates copyright infringement, it grants the copyright holder the right to order removal of the infringing material or to face the consequences of cutting financial resources. This includes virtually every single activity on the Internet, including email and social media. The Act also creates a danger of abuse, such as from false takedown claims. Many have made false DMCA takedown claims; the same could easily happen with the Stop Online Piracy Act. Increasing this risk is the breadth of the Act. It may lead to copyright holders suing over activities that would normally be considered legal. The Act's breath and abuse create several consequences. It would, for example, "significantly chill innovation in social media and undermine social websitesʼ central role in fostering free expression."

Conclusion

As of recently, it appears that the House of Representatives will not pass the Stop Online piracy Act. But that result is not yet certain. And further, the Senate has a similar prospective law (the Protect IP Act) that creates almost as devastating consequences. We urge you to join the fight against this ill-conceived legislation by contacting your Congressmen.

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Are parents liable for children’s illegal filesharing?

Are parents liable for children’s illegal filesharing?

Things parents should know If they receive a notice that they are being sued for their children’s alleged illegal Filesharing  

If you’re reading this, you may be a parent who has received a notice that your Internet account has been flagged for alleged illegal filesharing, and your child has admitted to illegally uploading/downloading the music or movie in question. The extent that you as a parent are liable for the “copyright infringement” of your children is still up for legal debate. New Media Rights has created this guide for parents to along with the “Mass Copyright Lawsuit” guide to help you understand what you or your child may be accused of.

Ideally, parents trying to determine whether they’re responsible for their child’s illegal filesharing should contact an attorney familiar with the specific parental liability laws in your state. While this guide is no substitute for legal advice tailored to your factual situation, the guide should provide a jumping off point for your to understand this issue that is largely unsettled.

In addition to parents, we hope this guide can act as a primer for attorneys, policy advocates, and judges when considering parents’ liability for a child's’ illegal filesharing activity.

INTRODUCTION TO FILESHARING LAWSUITS

As you may be aware, tens of thousands of people, have been sued by movie studios and adult video companies (the “Plaintiffs”). These Plaintiffs collect the “IP addresses” of computers they believe have illegally shared their movies online. After they collect these IP addresses, they file “John Doe” lawsuits to obtain the defendants’ name and address, so that they can send letters demanding settlement money from the owners of the the internet access plans associated with those addresses (the person who pays the internet bill each month), alleging that these account holders have illegally shared their movies using the internet.

For various reasons, IP addresses may not be effective to definitively identify an individual computer user. Sometimes an IP address can be traced directly to a computer and directly to a person if that person is the sole user of that computer. Just as often though, a IP address seemingly involved in suspicious, illegal activity might just be an errant laser printer. Because suing people based on IP addresses isn’t always accurate, some account holders receive notices alleging illegal filesharing despite having not committed any illegal act.

Also, even if the IP address can be traced back to a specific computer where an infringing act did take place, it’s often the case that the computer/internet connection is shared by a family, a business, or a whole neighborhood (in the case of unsecured routers). Even if an infringing act could be tracked to a certain internet connection, in many cases the internet access account holder was not the specific person who committed the act.

The person who actually shares a file illegally is the one who is responsible for the direct copyright infringement. If you were not the person who shared a file in your house you are not a direct infringer even if your computer was used.

If a person did not actually share a file, you are almost certainly not a secondary copyright infringer either. Intermediaries like internet account holders who do not have specific knowledge or control over infringing acts on their networks have typically received a great deal of protection from liability from courts for both direct and secondary infringement claims.

This is all a very complicated way of saying that, under the traditional legal theories associated with Copyright infringement, it’s unlikely that you as a parent are liable for your child’s illegal filesharing, even if you receive a settlement demand stating that this is true.

However, it’s very important to understand that there are several legal theories not associated with copyright law under which you could be liable for your child’s illegal filesharing.

INTRODUCTION TO PARENTAL LIABILITY STATUTES

Generally, copyright infringement is a subject for the Federal law. However, most states have statutes holding parents financially responsible for “property damage” committed by their minor children.

For example, the relevant part of California's parental liability statue (California Civil Code - Section 1714.1) says this:
 

(a) Any act of willful misconduct of a minor that results...in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor...and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct.



There haven’t been any cases directly addressing how these parental liability laws would affect a copyright infringement case. Below we discuss how a real court would analyze these issues.   Of course, a requirement for any such lawsuit would be that a plaintiff would have to prove your child actually committed copyright infringement by sharing the file using the internet.

There are four issues to analyze whether a parent is liable for the infringement of their child:
(1) what is “willful misconduct” and is any other types of misconduct covered by these statutes;
(2) are all “minors” covered under these statutes or are some exempt;
(3) what is meant by “property of another”
(4) what is meant by “injury.”

1. Who is covered by the language of these statutes?

Generally, children over seven are responsible for their own torts, and the legal consequences that may follow. But because most children are dependent on their parents, states have enacted statutes holding the parents financially responsible for acts done by their children, to ensure that the plaintiffs can at least recover part of their damages.

Because parental liability statutes impose liability where none was before under common law, the people affected by the statutes have been narrowly construed. Generally, a person must be the custodial parent, or have control of the minor child to be liable. [ Children and the Law: Rights and Obligations, Section 11:6 ] Control is not about behavior, but over the legal interests of the child. What this means, especially for parents with split-custody of a minor, or other family members where the minor is just visiting, is that you may not be financially responsible if the minor did use your internet connection to download copyrighted material.

2. What acts are covered under these statutes?

Many states, including California, require that the act be done wilfully, that is, with the full knowledge of what they are doing. This does not mean that they have to know the full legal consequences of downloading, but they do need to be aware that they are downloading copyrighted material. Other states only require the minor to be negligent.  It is important to know the language of the statute in your state.

Liability should not apply where fraud is involved. If the website or service the child used claimed to be legitimate or seemed to be offering a legitimate service, your are not likely to be responsible for the consequences.

Advanced note for lawyers. The standard for “willfull” for parental liability is probably different than “willfull” for willful copyright infringement, which does require knowledge that the download is illegal to allow for higher damages.  This is discussed in greater detail below, in the section “How much money am I on the hook for?”).  

3. What do these statutes interpret as property?

Copyright protected material is considered “intellectual property.” Although original creative expression is mostly intangible, the law treats it as though it were tangible. When we’re talking about copyright infringement, the property in question is the original work, such as the movie or music, and the claimed infringement is regarding the downloader’s unauthorized copying of that work in the form of a downloaded file. The copyright is owned by someone, and by sharing a copy illegally instead of purchasing a physical copy or a licensed digital copy, copyright holders argue that your child is essentially infringing upon their right to sell and license that content.

What do they mean by damage (or injury)?

Parental liability statutes were enacted to compensate a plaintiff for damage done to their person or physical property, not intellectual property. Part of this could be because actual damage to copyright and trademarks are difficult to ascertain with any sort of certainty, or because federal laws provide statutory remedies for infringement.

In the case of copyright, we can most likely assume that the simple act of illegal filesharing would be an infringing act, but whether this constitutes “damage” analogous to a broken window or a broken bone is unclear.

In addition, the damage limit is only for general damages, that is, damages that have been directly caused by the conduct, and does not include liability imposed by law. This is critical when talking about copyright law because copyright law imposes a specific amount of damages for certain acts.

When a copyright holder (like a movie or music studio) is suing on copyright infringement, it is generally the responsibility of the plaintiff to show how much money has been lost or how much damage has been done to the property by the infringing act, which in this case is a download or upload of a file. However, since the damage caused by a single download could be too low, or too difficult to ascertain with any sort of certainty, most plaintiffs seek statutory damages, which are outlined in the Copyright Act.

Generally, damages for copyright are limited to between $750 and $30,000 per infringing act.

Damages could be found to be up to $150,000 per act after a trial.  The standard for awards over $30,000 requires a court to find that the download was done “wilfully.” This is a high standard, and means the minor must know both that they are filesharing something, and that the filesharing is illegal.

It is also important to note that copyright law allows for a lesser award for damages if the child’s mental state was such that they were “not aware and had no reason to believe that his or her acts constituted an infringement of copyright.” (17 U.S.C. 504(c)2)  This good faith infringer argument could be important in cases involving filesharing by a minor.

The summary of all this is that this may mean parental liability statutes don’t cover statutory damages because they are not damages directly caused by the conduct.  Further, actual damages caused by the child’s download may be minimal, and may not even be covered under the state’s parental liability statute if it doesn’t cover intellectual property, offering further support to parents seeking to avoid liability.

How much money am I on the hook for?

The monetary responsibility imposed on the parents in California is up to $25,000 per act. Statutes vary from state to state, but in general they require the minor to act willfully, recklessly or wantonly. If a court finds that the child had the correct mental state, that copyrighted material is considered property for purposes of the parental liability law, and that the damages (general or statutory) for copyright infringement are covered in the parental liability law, a parent in California could theoretically be on the hook for up to $25,000 per song, movie or TV episode, or any other piece of media that has been downloaded without a license.

While this adds up fast, it is still less than copyright statutory damages, which can run up to $150,000 per file.

All state parental liability laws are not created equal

This highlights a key difference between state parental liability statutes.  The parental responsibility statutes vary from state to state, and some states, like California, may allow plaintiffs to recover on each act, while others may allow acts to be consolidated. What this means is that the parents of a child that makes 5 downloads may be liable for up to $125,000 in a state like California, while in states the same parents may have only been financially responsible for up to $10,000, total. Be sure to check, or preferably have your lawyer check the statute in your own state for both the amount of the cap as well as whether the state allows consolidation of claims.

Conclusion

Although parental liability statutes place a limit on the amount of money a parent will have to pay out for tortious damages, it is unlikely that parental liability damages will be applied to damages for a copyright suit because parental liability statutes generally apply where damages are not set out in the statute itself.  

So, while it is undecided in the courts, there is a good argument that parental liability statutes should not place liability on parents for statutory damages under copyright law because they are not damages directly caused by the conduct, instead, they are set by law.

Most states have their own statutes for parental liability, and the level of financial liability can vary. Some states set their cap, like California, to be per act, while others hold the total no matter how many acts there are. Be sure to check the statute for your state.

In addition to parental liability statutes, parents of course still must face the prospect of their children being sued for copyright infringement.  Even if the parents were found to not be liable under state parental liability statutes, a child can be sued directly for copyright infringement, which would surely still put a strain on family resources in terms of hiring legal counsel, even if the child had little in the way of assets that the copyright holder could recover.

 

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Become a Founder of New Media Rights!

Click here to become a Founder now!

It's the time of year to give thanks, and we are thankful for all those who have supported our work over the last four years.

New Media Rights is at a crossroads. We need your support today to make sure we can continue to provide our services.

By giving today, you can help ensure that hundreds of creators, innovative new media projects, and internet users like you will get the quality legal help they need to keep creating their work, avoid lawsuits, and resist attempts to silence free speech on the internet.

We are looking for donations to help us meet a goal of $25,000 raised by the New Year.  While we are asking for donations of $250.00, if you cannot afford that we would greatly appreciate any amount that is appropriate for you. You can track the New Media Rights community's progress towards this challenge with the widget on the right hand column of this page.

In return for a suggested donation of $250 or more, we will also place your name, or your organization’s name, as well as a link to your website, on a prominent, permanent Founders page on our website (unless you choose to give anonymously).
 
Please also strongly consider making your donation a recurring one.
 
 
You can also watch the video below or read a few stories of those we've helped as a reminder about why New Media Rights exists.
 
If you have any questions about this campaign, please call us at 619-591-8870 or email art@newmediarights.org.  

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Net Neutrality Rules: Illogical logic governs what ISPs can block

Net Neutrality illogical logic

 

 

As we recently discussed, the FCC’s new Net Neutrality rules forbid Internet service providers (ISPs) from blocking access to certain materials. These rules make clear that “fixed broadband” ISPs (AKA cable and DSL Internet providers) cannot block access to lawful materials. But, illogically, whether they can block access to unlawful materials is not at all clear.

The rule on what fixed broadband ISPs can and can’t block appears clear on its face: An ISP cannot “block lawful content, applications, services, or non-harmful devices . . . ." But ambiguity appears when examining the word “lawful.” Most would assume that the word applies to each of the four things listed, meaning that ISPs can block any unlawful content, application, service or device.

Yet the FCC’s own explanation of this rule indicates that this interpretation is incorrect. As the FCC explains: "The rule protects only transmissions of lawful content, and does not prevent or restrict a broadband provider from refusing to transmit unlawful material such as child pornography." (emphasis added).

The FCC explicitly states “lawful” only applies to “content.” It never mentions applications, services or devices. So does this mean an ISP can block access to unlawful content, but can’t block access to an unlawful application, service or device? According to the FCC’s explanation: Yes.

The ramifications of this interpretation are expansive. What the ISP can or can’t block will depend solely on how the material is accessed. So, for example, an ISP could legally block access to the hypothetical website WatchSimpsonsOnline.com, a website that only illegally streams Simpsons episodes. Because this website is unlawful content, and the Net Neutrality rules state that ISPs can block access to unlawful content.

By contrast, a person could watch these same Simpsons episodes by using BitTorrent to download them, and an ISP could not block access to it. BitTorrent is an application that allows people to share files directly from one computer to another. It has both lawful and unlawful uses. Downloading Simpsons episode is the latter.

But even though the use is unlawful, an ISP could not block access to that use. Because BitTorrent is an application, not content. And the Net Neutrality rules state that an ISP can’t block unlawful applications.

Logically, interpreting the Net Neutrality rules this way can’t be right. But legally, it likely is.

 

Photo By: "Wordle of Kerry's letter re: Net Neutrality" by believekevin under a Creative Commons attribution 2.0 license

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How we helped a local filmmaker & our guide for filesharing defendants

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 New Media Rights has had an eventful month! Here's what we have been up to...

New Media Rights creates a legal guide for defendants in the mass copyright lawsuits

As you may know, over 100,000 people have been accused of illegally downloading films and adult videos in the last two years. With suits this broad, many innocent individuals have been caught in the crossfire and threatened with legal action unless they pay $1,000's in settlement money. Even for innocent defendants, it is less expensive for them to pay that settlement money than it would be for them to hire a private lawyer to learn/defend their rights.

New Media Rights has assisted many of these individuals for free, but recently, we have been overwhelmed with the amount of defendants contacting us. That's why we thought it would be useful to create this legal guide for these defendants we can't personally assist...

Guide for defendants in mass copyright lawsuits

That way, they will at least have a chance of understanding their rights before being "extorted" by erroneous settlement letters. Please share this guide as widely as possible so this information gets to the people who need it. Also, let us know at support@newmediarights.org if you post a link to the guide on your site or post it on Twitter so we can thank you personally.



New Media Rights helps a local San Diego documentary filmmaker

Unfortunately, there are few resources available for documentary filmmakers to get one-to-one assistance with reviewing their films before publication. San Diego filmmaker Maricar Camaya created a documentary about the plight of a San Diego man facing deportation to Uganda and that country's repressive anti-homosexuality laws, and the film used a newspaper article and photos in fair use under copyright law. He asked New Media Rights to review his documentary to ensure that his work didn't violate copyright laws. You can read his short story here.

Mr. Camaya is just one example of the hundreds of individuals who rely on New Media Rights monthly.  If you've made a film, or if you've been told to remove your photos, video, or other content from the web, contact New Media Rights at 619-591-8870 or support@newmediarights.org and we can take you step-by-step through the process of getting your content reviewed or restored.

New Media Rights welcomes fellows Dan Terzian and Chrissie Himes

New Media Rights recently added to two new Fellows to the team. You can find some of their contributions on the New Media Rights blog

The FCC's Net Neutrality Rules: A tale of two internets by Dan Terzian

US Supreme Court Declines to hear ASCAP Appeal by Chrissie Himes


NMR Will Be Presenting at the Media Law in the Digital Age Conference in October

NMR will be at the Media Law in the Digital Age conference on October 22nd at Kennesaw State University in Atlanta, GA. The event will start at 8:30AM with sessions all day until 5:00PM

Executive director Art Neill will be on the panel "Apps and Wireless: New Platforms for Online Content Providers and Journalists." The panel will be discussing potential legal risks for entrepreneurs from terms of use, to copyright, to licensing, to using geolocation data to tailor content, as well as the general legal issues surrounding mobile content distribution. 

We were graciously invited to participate by the co-producers of the event, the Citizen Media Law Project at Harvard University’s Berkman Center and Kennesaw State’s Center for Sustainable Journalism.

NMR Will Be Exhibiting at Blogworld in Los Angeles in November

NMR will be exhibiting at the BlogWorld convention on Friday, Nov. 4th and Saturday, Nov. 5th at the Los Angeles Convention Center. We were able to meet lots of independent creators at our booth last year that ended up using our services, and we hope that the demand is even higher this year. For attendees who'd like to schedule a time to get into contact with us, drop us a line at support@newmediarights.org.

Ways to get involved with NMR without getting out of your chair!

Do you want to support our work protecting the rights of content creators online?

1, You can donate by visiting our secure donation page

2. You can retweet us on Twitter, like us on Facebook, and subscribte to our Youtube and Flickr accounts

3. Write articles for our blog. If you would like to become part of our blogger network, send an email to support@newmediarights.org

4. Suggest new resources, projects, and advocacy efforts for us to participate in by using our contact us form

 


Icons created by Missrivs under a Creative Commons Attribution-Share Alike No Derviatives 2.0 License

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Guide for defendants in mass copyright lawsuits (Bit Torrent Filesharing cases)

We want to thank the California Consumer Protection Foundation for their support, which allowed this guide to be created.

TABLE OF CONTENTS

INTRODUCTION

If you are reading this guide, you may be a defendant or may know a defendant involved in one of the “BitTorrent filesharing lawsuits.” These suits are also sometimes referred to as “Mass copyright lawsuits” because for the first time, hundreds and sometimes thousands of individuals like yourself have been implicated in lawsuits alleging “copyright infringement.” Indeed, as of September 2011, there are over 200,000 individuals involved in such lawsuits.

You may have received a letter from your Internet Access Provider that alerted you of the potential lawsuit against you. Since this may be the first time anyone has ever threatened legal action against you, the contents of this letter may shock, frustrate, or confuse you.
 
As a public interest legal advocacy organization, and due to the dramatic number of defendants and pressure on resources for assistance, New Media Rights has drafted the guide below to provide you basic information regarding how to handle the letter you have received. Please read everything in this guide carefully. Also, realize that this guide is not a substitute for legal advice from a lawyer.
 
DISCLAIMER: THIS GUIDE IS NOT A SUBSTITUTE FOR LEGAL ADVICE
 
This guide is not a substitute for advice from a lawyer because each person’s case is different. We would like to ensure that ever person gets accurate, up-to-date information, but a guide like this can only serve to provide basic orientation.
 
You may be able to find a lawyer who can assist you by visiting the EFF’s Subpoena Defense resource at https://www.eff.org/issues/file-sharing/subpoena-defense.

Because these suits have been filed against such large groups of people relatively indiscriminately, defendants like yourself may be in one of several very different situations.  Some possibilities:

(1) You may be aware of the circumstances surrounding the filesharing of the movie/video you are accused of sharing illegally online

(2) You aren’t aware of the circumstances surrounding the filesharing of the video you are accused of sharing illegally online, and you may not even know what BitTorrent is.

(3) Someone in your family or a third-party stealing your internet connection may have downloaded the movie/video in question without your knowledge.

These are just some possibilities.  The wide range of situations that you may be in, the wide range of different plaintiffs filing these suits, and the quickly changing legal landscape surrounding these lawsuits makes it so a guide like this is not a proper substitute for legal advice directly tailored to your situation.

That said, we understand how difficult it is to get any information at all about these suits. We also understand that these suits are designed so that it is less expensive for you to settle than hire a lawyer to learn your rights. That’s why we have drafted this guide to explain to you what is going on generally, and the best ways to proceed.

WHAT ARE THESE LAWSUITS ABOUT?

As you may be aware, some producers of independent films and adult video content have been suing individuals who they believe have illegally downloaded their films. These movie companies (the “Plaintiffs”), gather the identifying numbers of the computers they believe are involved in sharing their films, these are called “IP addresses.” For various reasons, some of these IP addresses are associated with internet account holders who have not actually illegally shared a video online. Even if you are sure you are innocent, you may be one of these people who was mistakenly flagged.

These Plaintiffs are accusing people like you of illegally engaging in illegal filesharing of their movies for free through sources like “BitTorrent” or “P2P” programs (filesharing services that can be used for for illegal as well as legal downloading and uploading) rather than legally obtaining the video from sources like iTunes and Amazon. Almost always, these Plaintiffs are looking for settlement money as it would generally be difficult for these plaintiffs to engage in thousands of long, drawn-out trials.  That said suits against individuals are possible, and appear to be targeted at making examples of individuals to force further settlements.

The letter that you received is most likely from your Internet Access Provider (major providers include Cox, Comcast, and Brighthouse). It is important to know that your Internet Access Provider is not suing you. The Plaintiff (the owners of these movies and adult films) forced or is attempting to force your Internet Access Provider to release your personal contact information because of a legal “subpoena.” To get the legal power to send that legal subpoena to your Internet Access Provider, the Plaintiffs had to add your “IP Address” to the lawsuit that they filed.

Until the Plantiffs get your contact information, only your IP address has been implicated in the lawsuit. Unless you have been notified otherwise, this means that you may not yet be a “named defendant” in any lawsuit.

Generally, only “named” defendants, not IP Addresses without names attached, can be sued to the point where a judgment is rendered. Before you are named, you are considered a “Doe Defendant” (as in John Doe).  It can be expensive and complicated to change your status from a Doe defendant to a named defendant. Therefore, the Plaintiffs are very interested in settling, (getting a $500-5000 payoff) before it gets to the point that they have to name you.

That’s why, if their subpoena is successful and the Plaintiffs get your contact information from your Internet Access Provider, the Plaintiffs will typically send you another letter, or series of letters, demanding an amount between a few hundred to several thousand dollars to settle any dispute with them.

Below are options on how to proceed as a Doe Defendant.

WHAT ARE YOUR OPTIONS RIGHT NOW?

Again, while these are no substitute for competent legal advice, these are common paths available in these cases.  They are not listed in any particular order and no specific path is being recommended for your situation.

1. You can wait. You can wait until after the deadline indicated in the letter from your Internet Access Provider. After that day, unless the court rejects the subpoena, your Internet Access Provider will have to forward your contact information to the Plaintiff's law firm. This does NOT mean you've been judged guilty of anything. You will STILL have a chance to defend yourself if a lawsuit is filed.

After the deadline date provided by your Internet Access Provider, it simply means that your name (and likely that of thousands of other potential defendants) will likely be available to the Plaintiffs.

The Plaintiffs will then typically mail a settlement letter or email to you. If you ignore that letter, they will then have to choose whether or not they want to add your name to the lawsuit in that jurisdiction, or dismiss you and perhaps sue you in another jurisdiction based on the geographic information they collected in the subpoena.

2. You can hire an attorney to represent you to file a motion to quash right now. A “motion to quash,” if filed before the subpeona date on the letter that you got from your Internet Access Provider, could theoretically prevent your contact information from being sent to the Plaintiffs. Be aware though that a number of these early motions to quash filed have failed.

Before your information is released, most of what a lawyer could do is file a "motion to quash." Generally, motions to quash in these types of cases are expensive and fruitless will not help your situation, but your specific facts are necessary to make that determination. Unfortunately, collecting those facts and making that determination is something we no longer have the resources for.

Motions to quash don't look at the actual facts of your case: whether or not you committed the infringement. Instead, they tell the court to look at whether the procedure of the suit was or wasn't proper. The first argument is "Personal Jurisdiction" that (jurisdiction isn't proper) and the second is "Improper Joinder" (which is the too many does situation). Both arguments tend to be seen by judges as premature at this stage.

The cost to hire a lawyer to make this motion may be a few hundred dollars or more which, depending on the Plaintiff, could be close to the cost of settlement. Therefore, you should think carefully before you spend your time and resources to file a motion to quash.

A list of attorneys that may be able to assist you is here.

3. You can request that the Plaintiffs “voluntarily dismiss” (drop) their claims against you so you do not have to pay them anything. This may only be successful on rare occasions when you are both innocent and have extraordinary factual circumstances in your favor. For example, if you do not even own a computer, or have irrefutable evidence that can be provided to the plaintiff’s attorneys, you may be a likely candidate to be released from the suit.

4. You can settle on your own before or after you receive your letter asking for settlement. Plaintiffs may engage in settlement talks with you before or after they receive your name from a subpoena.  You should know that any settlement amount demand can be negotiated.  Some plaintiffs will settle for a lower amount if the settlement takes place earlier in the proceeding. Some will simply tell you to wait for the letter that will arrive in the mail or email.  If you do contact a Plaintiff before your name is released, you will want to protect your anonymity as best as possible.  This means avoiding using your common email address. Please read this whole guide because, as you will see, contacting the plaintiff on your own without specific legal advice about your specific situation creates a possibility of making your situation much worse.

5. You can hire a lawyer to help you get the claims released or settle. While a lawyer may be useful in obtaining optimal results, you do not need to hire a lawyer to ask for the claims to be dropped or negotiate a settlement on your behalf before your are a named Plaintiff. However, if you are named in the suit (you have been “served with process”), then you will almost certainly need the advice of a lawyer immediately.

Again, here is a list of lawyers that may be able to help you.
https://www.eff.org/issues/file-sharing/subpoena-defense

THINGS TO KNOW ABOUT THE SETTLEMENT LETTER YOU WILL RECEIVE

The letters these firms send are intentionally written to sound threatening and often intentionally written to be complicated. The claims in these letters may be slightly exaggerated for effect. For example, many letters will claim that if you don’t settle now, you will be liable for up to $150,000 in damages and the Plaintiff’s attorneys fees.  Typical damages for copyright actually range from $750 to $30,000, and to get damages between $30,000 and $150,000 a Plaintiff is required to produce a very strong showing of “intent” on your part.  That said, it is true that copyright lawsuits can be expensive for both damages and attorneys fees.

You should take the settlement letter’s threats seriously even if you didn’t actually share the movie you’re being accused of illegally sharing. Even if you did not upload or download the file that you have been accused of, you should take the allegations seriously and make an informed decision about how to proceed. Innocence may allow you to win your lawsuit, but it’s still possible that a fully innocent plaintiff could be named in a lawsuit. This means it may be helpful for an innocent defendant to reach out, or preferably have a lawyer reach out early to the Plaintiff to ask for dismissal, especially if you have specific facts that can prove clearly that you were not involved in the illegal filesharing activity.

Lawsuits can demand a great deal of time and money to defend yourself, so making an informed choice early on is a good idea.

The U.S. Copyright Group is not a government organization. One of the major Plaintiffs that files these suits is Dunlap, Grubb, Weaver. This law firm works under the name the U.S. Copyright Group. Many people might assume that the U.S. Copyright Group is some kind of government organization. This assumption is incorrect. The U.S. Copyright Group is merely a private law firm acting under an alias that makes it sound more marketable to its movie studio clients and more threatening to the consumers who are their targets.

These letters typically do not involve any criminal trouble. In the U.S., the criminal law and the civil law are entirely separate matters.  The “copyright infringement” claim that a private plaintiff such as a company makes is a civil matter. Although there are some extremely limited circumstances that copyright infringement could become a criminal matter, again these circumstances almost certainly do not apply when the plaintiff is a private entity like a company. It is unlikely that the criminal provisions of the copyright law can be implicated in this case such that you will go to jail, get a criminal record, or be threatened by police at any point in this process.

Settlement will probably cost between $500-$5,000. The letter will likely request that you pay some amount between this range to settle immediately. It will also threaten that if you don’t settle within a certain date, the initial settlement offer will go up. Keep in mind that the firm also has a stake in settling quickly so don't think the quote they provide is always set in stone.

 




THINGS TO CONSIDER ON WHEN RESPONDING TO THE SETTLEMENT LETTER

Unfortunately, without knowing the facts of your case, we cannot properly advise you on the best course to take in response to your letter. Below are merely general principles to be aware of.

1. It is almost certainly unwise to give the Plaintiffs any details about your situation that they don’t already have unless you are represented by competent legal counsel. It may be best to avoid sharing any details with the Plaintiff without first discussing the specific facts of your case with legal counsel. Although open communication may sometimes help your case, more often than not it may hurt your case to discuss details with the Plaintiffs. Only a competent lawyer will know which facts can help or hurt your case.

2. Do not lie or misrepresent the facts. If you do contact the Plaintiffs, either do not answer questions that cause confusion or hurt your case, and if necessary, break off communication.  You do not have to answer any questions, so do not lie or misrepresent facts.

3. Keep in mind that even if you own and paid for a physical DVD of a movie, the law generally still does not allow you to download another copy of that movie from an improper source like BitTorrent simply for entertainment purposes. Therefore, telling the Plaintiff that you did download the movie in question but that you also own the movie will NOT help your case. It will actually HURT your case significantly.

 

SHOULD I HIRE A LAWYER?

 

At this time, New Media Rights is not acting as counsel in these cases because of our limited resources. Whether you should spend money on a lawyer or not in these types of cases is also an unsettled question. There are so many different plaintiffs and different modes of trying to do business that it's impossible to know... 
(A) whether a plaintiff with be open to negotiate for a smaller settlement, 
(B) whether it would take a lawyer's intervention to negotiate for a smaller settlement, and
(C) whether that lawyer's negotiation would be so successful in lowering the settlement that it would be worth the cost of the lawyer. 
 
For people who clearly know that they are completely innocent and can easily substantiate that innocence, they can be much more safe in knowing that hiring a lawyer to defend them and/or ignoring settlement letters will produce useful results. For those who clearly know they have downloaded the file, it will be less prudent for them to ignore the settlements, and the benefits of hiring a lawyer are more dubious.
 
If you do choose to hire a lawyer, it is worth asking 
(A) the exact steps the lawyer will take and why they will be taken, 
(B) what specific results have been achieved for other defendants like yourself in the past by taking those steps and 
(C) whether the lawyer's charge will be an hourly rate or a percentage of the money you save if a lower settlement is negotiated.
 
Of course, it would be optimal for defendants to hire a competent lawyer who charges defendants a percentage of the lowered settlement rather than an hourly rate. This is because hiring a lawyer at an hourly rate could cost a lot of money and end up being fruitless.

SHOULD I SETTLE NOW?

The decision to settle needs to be determined by looking at the specific circumstances of your situation as well as your aversion to risk, so it isn’t a proper subject for this guide.

In a few uncharacteristic cases, the courts have prevented Plaintiffs from continuing for a variety of technical reasons. Defendants like you in those cases were in a much more favorable position simply because they waited to settle while actively monitoring their case.

In many cases, the courts allow Plaintiffs to obtain individual names from your Internet Access Provider. Once your name is released, there is a possibility that they could amend the lawsuit to include your name or file an individual lawsuit against you in your jurisdiction if you do not settle in the time requested.  The prospect of suing hundreds or thousands of people individually is time and resource intensive for plaintiffs, but there is always the possibility of individual suits even if the chances are low that an individual lawsuit would be filed.


CONCLUSION

It’s an unfortunate and difficult situation to be a defendant affected by these cases.  

Lawsuits like these are based on the fact that it's much less expensive for an individual to settle rather than hire a lawyer and fight this process. We realize what a bad position that puts defendants like you in.

We hope this guide provides a bit of orientation so you can figure out the best path forward.


If you thought you gained something from this discussion, please consider supporting our work at by donating, sharing this guide through Twitter and liking us on Facebook.


FREQUENTLY ASKED QUESTIONS AND COMMENTS

This isn’t fair. I didn’t actually download anything. Why is this happening to me?

An analogy might help. Imagine the Plaintiffs collect IP addresses like tuna fisherman cast their tuna nets. Even though they may catch tons of tuna, some other animals like dolphins and turtles they didn’t mean to catch will also be caught in the net. Also, some of the tuna they caught in the net will manage to swim out before the net is pulled up.

In the same way that some people who actually committed the act will “get out of the net” and won’t have their IP address flagged, or be identified by the Plaintiffs, some people who didn’t do anything wrong will “get caught in the net” and will get improperly flagged.

Although, the Plaintiffs’ methods of collecting addresses have been questioned previously both informally and in court action, this may not help your specific situation.

They’re asking me to pay them money, and I didn’t do anything. Isn’t this unethical for a lawyer to do? Can I report them? Can I sue them back?

Although many have made a case that these mass suits are “unethical” generally, only specific conduct after the suits are filed has resulted in successful ethical challenges (see the Texas Evan Stone case). Said differently, while a number of courts are having less patience for these lawsuits, many suits have been allowed to proceed and individual names released. No matter what though, lawyers do have to follow their state bar’s ethics rules and Plaintiff actions can be subject to discipline if they violate those rules.

Am I liable for my adult children's or their friends' internet activities while they are using our internet access?

Generally, these plaintiffs will allege "direct copyright infringement" as the legal reason that you have to pay them settlement money. The person whose name is attached to the internet account (the person who will be addressed in the plaintiff's settlement letter) is the person the plaintiffs are accusing of that "direct copyright infringement." Generally, no-one else is being accused except for the person directly addressed. Direct copyright infringement requires you to actually, voluntarily download the work in question. This means that if "you" (a person who receives one of these letters) had no part in voluntarily downloading the file, then you would be completely free of liability for this claim. 
 
As the owner of the connection, it is arguable you could be liable for other "secondary" types of copyright infringement. BUT we think a ruling like that would be unlikely. The most likely answer is that a person who did not voluntarily download the file at issue would be free from secondary liability claims as well. 
 
Finally, some may argue that you still could be found liable under "negligence" since you allowed your connection to be used in an illicit way even if you did not directly download. There has been at least one case where a Northern California court found that an internet subscriber was not negligent for allowing someone to commit copyright infringement over an unsecured network.  The strong arguments against negligence, and developing case law in favor of defendants make it a difficult reason on which to base a settlement. Of course there are still practical reasons that settling could be an option, which are discussed in this guide.
 
Even if I'm not the one who downloaded something, can they go after my children, friends, or family who are in the same house who may have?
 
Yes. Even if you are not liable for any of the claims in the settlement letter, and even though someone like you could be in a very strong legal position to ignore settlement letters if you did not directly download, if you were one of the very-very small percentage of people who were actually implicated in a real law suit, you would have to cooperate in the fact finding process (called "discovery"). During discovery, you would likely have to answer questions, under oath, about who lived with you and whether there were any other people in the house who were capable of making the download. You would also likely have to answer, under oath, whether you knew the person who made the download.
 
After the plaintiff learns that there are other capable people in the home, it would be very easy to change the subject of the suit from you (someone who would be very difficult to win against) to one of the other people in your home who potentially could have done it (who would be easier to win against).
 
 

Once again, we want to thank the California Consumer Protection Foundation for their support, which allowed this guide to be created.

Value free legal services for internet users like you?  Support them.

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