You may be involved in a bitTorrent or file sharing lawsuit as a “John Doe” defendant. Have you recently received a letter from either your Internet Service Provider (ISP) or an attorney claiming to represent the copyright holder of certain files you allegedly have illegally downloaded/distributed over the Internet?

Such a letter from your Internet service provider says that they have been compelled to reveal your personal account information in connection with a subpoena. The letter will refer to an IP address associated with your account that has allegedly been used to download or “share” files over the Internet, usually adult content videos, through BitTorrent or other peer-to-peer sharing networks.

You may have also received a demand letter directly from a plaintiff’s attorney representing the copyright holder. Typically, these letters will inform you that you been named in a lawsuit anonymously as a “John Doe Defendant”. These letters then claim that the copyright holder obtained your IP address after an investigation of illegal downloading/distributing of their protected files usually by using P2P detection software. The letter goes on to state that pursuant to an order issued by a court, your ISP provided your account information associated with the IP address identifying your name and physical address. A demand is usually then made that you settle with them for the stated amount within a given amount of time, or you will be specifically named as a defendant in the lawsuit.

If this sounds familiar, you’re not alone. Certain pornographic and mainstream movie studios have been going after individuals who using BitTorrent and other peer-to-peer sharing networks to share and download copyrighted files. Thousands of alleged copyright infringers have been and are being sued! The copyright holders hire third-party detection companies to scan P2P networks, looking for users who are sharing the clients’ protected works. The detection company will then provide a list of IP addresses used to share those protected works to the law firm which has been hired by the copyright holder (usually the adult film studio). The law firm then files what is known as a “John Doe” law suit against the unknown alleged infringers. The court will grant a subpoena forcing the ISPs to reveal the names and physical locations of the account holders of the IP addresses identified in the lawsuit. This is when the John Doe will receive the demand letter.

 

Is using BitTorrent and other p2p networks to view and download files illegal?

Unfortunately using BitTorrent and other peer-to-peer networks to view files may constitute copyright infringement. You should never download anything unless the site clearly states that you can share and view those materials for free.

 

So, what should you do?

If you have received either a notification from your ISP or a demand letter you may be wondering what to do. First, you could ignore the letters and hope the situation goes away or it was a mistake. Do NOT ignore the letter or think its a mistake or that it might just “go away.” You will risk losing certain defenses available to you and will ultimately risk having a default judgement entered against you. If a judgement is entered against you, the court will award statutory damages to the copyright holder ranging from the minimum $750.00 to $150,000 in damages per infringement. Any judgement entered against you can be enforced by wage garnishment, liens on your home or bank account(s), etc.

There is a chance that the matter could go away if you simply ignore it. The plaintiff is usually going after hundreds (if not thousands) of potential defendants. You could make the assumption that the plaintiff will simply not have the resources  to pursue each John Doe individually. The lawsuit could also be dismissed by the action of some other party. But, depending upon where you are at in the process, you can choose not to ignore it and handle these allegations a few different ways. You can fight the case procedurally by filing a Motion to Quash the subpoena to compel your ISP to provide your identity. You can also file a Motion to Dismiss for lack of personal jurisdiction or you can choose to fight the case substantively in court (on the merits of the case) if you are named as a defendant.

If you are notified by your ISP that it has received a subpoena, you may have some time to draft and file a Motion to Quash the subpoena. However, I do not recommend  this action. This type of motion is based on the lack of personal jurisdiction of the court hearing the case. Succeeding on such a motion eliminates your ISP’s obligation to disclose the information about your name, address, and telephone number. However, typically, the underlying copyright infringement cause of action will still exist. You will have spent money in legal fees along with your time and aggravation and will reveal your identify along with this in the process. It is better to wait to see what happens and let another defendant attempt to file a Motion to Quash.

Sometimes, you have no idea a subpoena was sent to your ISP and you have simply received a demand letter from the plaintiff’s attorney. Most John Doe defendants fall into this category. You have several options here. You could ignore the demand letter. You can also elect to refuse to settle for any amount and hope that a strong response letter serves as a deterrent to filing suit. You could also settle or negotiate a lower settlement directly. The sooner you contact a defense attorney, especially if you still hold the cards, the more leverage you may have. You are always at risk that you are individually named in the existing lawsuit if you ignore any demand you receive. However, plenty people have ignored these demands or responded with the help of an attorney and have not been named in a lawsuit. Our experience generally has been that the facts of each individual allegation of infringement should be carefully explored to determine the appropriate response. Ultimately, copyright troll plaintiffs face an uphill battle attempting to prove actual copyright infringement of the account holder based on a mere linkage of the corresponding IP address. If you are named in a lawsuit, you can elect to answer the complaint and attorney’s fees could be awarded should you prevail. Many defendants have been dismissed from these lawsuits after being named and brought into the mix for a variety of reasons.

If you are named in a lawsuit and have not settled, you often are able to address this situation procedurally. Often, such a suit goes no farther than filing a motion to dismiss for lack of personal jurisdiction over the defendant. The vast majority of John Does are named in lawsuits filed in courts which would have no personal jurisdiction over them. The copyright holders acquire their lists of IP addresses and don’t determine where the anonymous individuals are located. It is less expensive for the plaintiffs to file one lawsuit and name many John Does in bulk instead of paying the filing fees associated with pursuing every alleged infringer individually in the appropriate jurisdiction. Of course, this isn’t guaranteed and even if your suit is dismissed, the plaintiff can re-file in the appropriate jurisdiction. Assu

 

How Can An Experienced Attorney Help?

We can potentially assist you defend against these types of lawsuits if you have received a notice from your ISP or a demand letter. We can help you evaluate where you are at in the process and then determine the best course of action. When you receive notice early in the process, you hold the cards and have the most leverage. It is therefore important that you contact a qualified attorney as soon as you receive a notice or demand letter. Your leverage diminishes as time passes. If you do desire to settle with the plaintiff, we recommend that you don not try to settle yourself. An experienced attorney that has handled these types of matters before understands the economic analysis the plaintiff’s make in determining their course of action. In the end, this can be the difference between settling for a large sum or walking away relatively unscathed.