Ariano & Associates, PLLC: Aggressive “BitTorrent” Copyright Defense
BitTorrent and other peer-to-peer networks allow users access to copyrighted materials without the associated cost of purchasing an authentic copy of the artistic work. The owners of the copyrighted materials have a right to grant access to their product for a fee or to offer the work to the public free of charge. The choice is theirs. In essence, therefore, obtaining copyrighted materials without paying for them is a form of theft. Consequently, the owners of a copyright have the right to seek damages for the unlawful procurement of the protected material. Copyright holders, or their lawyers for that matter, have no right to harass and threaten you with frivolous lawsuits and extort monetary settlements from you if they believe you downloaded copyrighted materials.
What Is A Peer-to-Peer Network?
One of the more popular peer-to-peer networks used today is BitTorrent. Limewire is another popular peer-to-peer service. One of the most popular, and most controversial, peer-to-peer networks is Napster. They are computer programs that allow you to download music, movies, and television shows in their original format and share them with other users through the particular computer program in use.
How do these programs work? A peer-to-peer network is a series of computers connecting to a network that shares pieces of information. The process begins when a person downloads or copies material to their computer via the internet through their Internet Service Provider (ISP). A file is then created that is an exact duplicate of the original work. This is called the seed file. Other people download the copied file by accessing the seed via a peer-to-peer network. The end user opens their BitTorrent program and searches for the file they want to download.
Once the file has been successfully downloaded, other peers on the network can access the file by connecting through the network. The file then spreads across the network. This is called a swarm. Other users pull information from the swarm. As more people access the swarm, the information that comprises the entire file is spread out across the network. The end result is a computer file that is split into pieces of information stored across this peer-to-peer network. Storing the computer files in this manner obviates the need for a centralized server. A new person entering the swarm ultimately downloads a file that is spread across hundreds or thousands of personal computers. BitTorrent uses tracking software that searches the BitTorrent network for pieces of the requested file. The only obligation for the BitTorrent user is that he or she must allow the BitTorrent tracking file to search the individual’s computer for pieces of a file.
The decentralized nature of the BitTorrent peer-to-peer network makes locating the seed file and users difficult for copyright holders interested in pursuing their legal rights and prevent dissemination of copyrighted material.
What Is Copyright Infringement?
Copyright infringement is the misappropriation of a person’s work that is disseminated or sold without permission of the holder. The holder has the right to charge a fee for access to their work. Copyrighted materials can include:
- Writings such as educational papers originally drafted by the author,
- Recorded music,
- Television shows,
- Dances, and
- Computer programs.
The author of the work holds the copyright. That means the author has the exclusive right to determine what happens to the material. They can record and preserve the material as well as sell or otherwise transfer the artistic work.
If perfected by filing an application with the U.S.Copyright Office, then the copyright holder can take advantage of the U.S. copyright law’s prohibition against unlawful copying and distribution. Copyright law limits a copyright holder’s rights with regard to certain issues like fair use and duration of the copyright.
The person or entity found responsible for copyright infringement may be liable to the copyright owner for damages. Monetary damages can range from the statutory minimum of $200 for an unknowing and unwilling transfer to $150,000 as provided by statute. However, the copyright owner can elect to pursue actual damages in lieu of statutory damages. Actual damages would amount to the monetary loss suffered by the copyright owner. The copyright holder can also sue for injunctive relief in addition to money damages. Furthermore, copyright holders may be entitled to recovering their attorneys’ fees and costs of litigation. Therefore, U.S. Copyright Law provides financial incentives for pursuing copyright infringers and a financial deterrent as well.
What Is A “Copyright Troll?”
Copyright trolls obtain rights from a copyright holder to pursue legal action to enforce copyrights. The name suggests that these companies and their attorneys are not necessarily pursuing justice on behalf of the copyright owner. Rather, they scour the internet looking for potential violators and then spring into action. Most often the copyright troll is not interested in protecting the intellectual property from unlawful distribution or interested in lawfully producing the material. Instead, the copyright troll only wants to make a quick buck. Tracking copyright infringers in this manner could be considered proactive copyright enforcement. However, when the attorneys are demanding settlement from someone who possibly acquired copyrighted material unlawfully, then they appear to be scam artists themselves.
Copyright trolls most often require small amounts of money to settle their demands. Copyright trolls commonly make these demands soon after they file a lawsuit. They have an incentive to settle the case without protracted litigation as will be discussed shortly. Copyright trolls often target purveyors of pornographic movies. They rely on the scandalous nature of the material to shame the end-users into quick settlements to avoid public humiliation in court. The copyright trolls threaten and then settle. What they do not tell the person they are accusing of unlawful behavior is that they do not want to take the case to court either. Taking a case to trial is time-consuming, costly, and potentially risky. As will be discussed further, a person may have a legitimate defense to a copyright infringement lawsuit.
Copyright trolls can turn a nice profit operating in this fashion. Assuming they identify only 10,000 of the 50,000 people they sued, they could settle with each defendant for a couple of thousand dollars per person. That amounts to a very large sum of money for very little work on the lawyer’s behalf.
Legitimate copyright holders can use this tactic to protect their financial interests. Copyright trolls should not be considered the equivalent of a legitimate copyright owner out for justice. For example, the holding company for the rights to Dallas Buyer’s Club, a very popular motion picture, vigorously pursued copyright infringers to recover the rights to their property. Those plaintiffs were not in it strictly for the money. They were trying to do what they thought was right by filing suit.
Another group called the U.S. Copyright Group filed John Doe lawsuits seeking damages for unlawful distribution of the movies Hurt Locker, which won an Academy Award, and The Expendables. U.S. Copyright Group sued 50,000 “John Does” for allegedly unlawfully downloading those two movies from BitTorrent.
How Do Copyright Holders Pursue Copyright Alleged Copyright Infringers?
An aggrieved copyright holder, if the holder does not know the true identity of the person who purloined the copyrighted material, must file a “John Doe” lawsuit in a federal court. The plaintiff in the lawsuit is the copyright owner. The plaintiff files the lawsuit against John Doe, a person whose identity has not been determined. All that might be known by the plaintiff is the internet protocol (IP) address when they file the lawsuit. The IP address identifies a particular computer on the Internet, which connects to the web via their ISP. The law prohibits ISPs in the U.S. from disclosing the IP addresses of their customers. Consequently, the plaintiff must file a motion with the court seeking from the judge an order declaring that the ISP must comply with a court ordered subpoena that reveals the identity of the IP address owner or owners in question. The ISP then has thirty days to reveal the IP address subscriber information.
The plaintiff must amend the lawsuit to add the correct name of the IP address owner. The plaintiff then must serve the IP address owner with notice of the pending lawsuit. A U.S. District Court judge revoked the John Doe subpoenas in The Expendables case. The judge issued the subpoenas in response to the plaintiff’s request.
The plaintiff, however, did little or nothing with most of the subpoenas for two months. After learning that, the judge revoked the subpoenas ruling that the plaintiff unnecessarily delayed serving the subpoenas after arguing they had “good cause” to ask the court to issue the subpoenas because ISPs, according to the plaintiff’s lawyers, do not retain the information for long. Waiting to serve the subpoenas directly contradicted the reason for the expedited request. Additionally, the judge learned that most, if not all, of the subscribers the plaintiff sought to identify did not live within the district in which the plaintiffs filed their lawsuit. Notwithstanding, the lawsuit proceeded against the identified subscribers who did not settle with the plaintiff.
Copyright lawsuits on such a large scale that name tens of thousands of defendants presents vexatious problems for a court. One issue is how the plaintiff should initiate the lawsuits. There is an argument to be made that the plaintiff should be allowed to include all of the defendants in one lawsuit, possibly as a class because they are too numerous to name.
Being a member of a class can have adverse consequences to the individual subscriber. Being named a member of a class can prevent a person from asserting a personal defense to the action. The most prominent and persuasive defense would be that the person had no knowledge of that the material was unlawfully downloaded via their IP address.
What Should You Do If You Receive A Demand Letter Claiming You Violated Copyright Law?
If a judge allows a subpoena for your identity via your IP address, then you might receive a demand letter from you ISP. The first thing you should do is read the document very carefully. Make sure you understand what you are being accused of and the demands that the plaintiff’s attorneys are making. You should not contact the plaintiff’s attorney yourself. You should have an attorney who is skilled in defending “BitTorrent” lawsuits contact them for you. Additionally, your BitTorrent defense attorney might have the opportunity to move to quash the subpoena. If successful, then neither you nor your ISP needs to respond.
Speaking on your own behalf might be tempting, but it is not the wisest idea. First, anything that you tell the attorneys can be used against you in court unless the statement is made during settlement negotiations. However, any attempts to try to explain what happened can be used in court as admissions. The admission may be as simple as that you were a subscriber of XYZ Cable Company’s internet service. Something as simple as that could be potentially devastating.
Furthermore, there are critical time-sensitive components which you must closely observe. You must respond to the demand letter within the specified time or face the prospect of being sued for copyright infringement. A demand letter is not notice that you are a defendant in a lawsuit but it could lead to it.
What if you are sued?
You will be formally served with a complaint and a summons. You will have twenty days to answer. The court will enter a default if you fail to respond within that timeframe. Additionally, you can forfeit valuable defenses by not filing a formal answer to the lawsuit.
Ignoring the lawsuit might be the worst thing you can do. You essentially let the plaintiff win because proving that you defaulted is easy. All the plaintiff has to prove is that you received service of the lawsuit in a specified manner and that you failed to answer the lawsuit within the time frame allowed. The court enters judgment against you. Then the plaintiff must file a pleading to determine the damages you owe them. Liability is not an issue at this time because the court entered a default against you. Therefore, contacting an experienced “BitTorrent” defense attorney soon after you received notice of the claim if vital to protecting your rights. Your “BitTorrent” defense attorney will know exactly what procedure to follow to protect your rights.
What Are Your Rights?
You have the right to defend the lawsuit filed against you. You also have the right to negotiate and settle the claim. You might have the right to file a countersuit against the plaintiff or their attorneys if they have used ruthless and extortionate tactics in an effort to scare you into settling your claim. You must work closely with your attorney to resolve these issues.
For some, settling the case might be the safest and least expensive alternative. The plaintiff might only want a small amount of money from each person to settle. However, if the plaintiff believes that you owe the copyright owner a substantial amount of money, you can still negotiate but the better option might be to settle. You might not have to reveal your identity if you responded to the demand letter from the plaintiff or your ISP. You can avoid the potential for public humiliation depending on the nature of the allegations.
A person might have a defense to the case. For example, a person might have a wireless internet router that was hacked or not password protected. Unintentionally, any person within range of the wifi signal can use the person’s ISP to connect to the Internet via the IP address of the router and anonymously use BitTorrent or another peer-to-peer client. You would not owe the plaintiff any damages in that instance because you did not intend to infringe upon the plaintiff’s copyright. You will need to have some evidence of this fact. Simply claiming a mistake will not automatically exonerate you.
One crucial point to consider is that the burden of proof on the plaintiff is only “a fair preponderance of the evidence.” In other words, all the fact finder needs to determine is whether it was more likely than not the event occurred. The preponderance of the evidence standard is the burden of proof in civil cases. It is not the familiar “beyond a reasonable doubt” burden of proof used in criminal cases.