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.

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