For a number of months now, I’ve been representing defendants in what are commonly known as “copyright troll” cases. In these cases, the plaintiff—typically a producer of pornographic videos—files suit against one or more “John Doe” defendants. These cases frustrate the hell out of me.
The complaint in a case like this alleges that the defendant(s) downloaded works copyrighted by the plaintiff via Bittorrent, but due to the nature of Bittorrent the name of the defendant(s) is not known. All the plaintiff knows is that a certain IP address (e.g. 184.108.40.206) was engaged in a Bittorrent stream (aka “swarm”) on a given date and time.
Shortly after filing, the plaintiff’s attorney files a motion with the court for early discovery so the attorney can send a subpoena to the ISP to learn the identity of the subscriber who had the IP address in question on that date and time. At this point, the plaintiff has enough information to at least plausibly allege that the subscriber was engaged in the unauthorized download and thus infringing the plaintiff’s copyright.
Here’s where the dilemma starts to come in. The ISP usually sends notice to the subscriber of the subpoena, but won’t do anything to fight the subpoena. If the defendant does nothing by a certain date, the records will be turned over. At times these letters are ignored, but sometimes a subscriber will find a way to file a motion to quash the subpoena. More often than not, the motion is denied by the court, and the ISP produces the subscriber’s information to the plaintiff. Then, the plaintiff’s attorney typically sends a letter to the subscriber that says:
- We’ve identified your IP address on date/time as being involved in a download.
- We’ve filed a suit against one or more John Doe defendants.
- Before we name you as a defendant in the lawsuit, we’d like to give you a chance to settle this claim.
- Pay us X dollars and we’ll give you a full release.
Most of the people I represent get this letter and are confused. They don’t know what Bittorrent is, and they claim to have no interest in pornography. They want to know what they can do. I tell them there are a number of options.
- They can pay the amount demanded by the plaintiff’s attorney.
- They can pay me some money to try to negotiate a lower settlement amount.
- They can pay me money to file motions to challenge improper joinder and other defenses that might get the case dismissed.
- They can pay me money to defend the lawsuit.
- They can do nothing and hope the plaintiff just goes away.
All of these options are lousy. If the defendant has done nothing wrong, why should he or she have to pay anything? As one client described it, she felt like someone walked up to her on the street, drew a gun, and said “pay me $3,000 or I’ll shoot.”
To fight the lawsuit, however, will almost certainly cost much more than $3,000. There is also the risk that the defendant might be found liable, which means the defendant could be on the hook for as much as $150,000 per infringing act. That risk can’t be dismissed.
It’s no secret that clients lie to lawyers all the time. Still, I’ve found that in the cases I’ve worked on, clients are pretty straight with me about whether they have downloaded pornography or not. I have to conclude that some of my clients are, in fact, innocent of any wrongdoing. But there’s no way they can afford to defend the lawsuit and prove they’ve done nothing wrong.
At times, I feel like the copyright trolls are simply extortionists. They don’t care whether someone is in fact innocent. They don’t care if there was an unsecured wireless network that a neighbor might have used to download the copyrighted works. They aren’t that intent on prosecuting the infringement case—if they were, they would not offer the “inexpensive” and early settlement. From an innocent client’s standpoint, it’s as if they were unlucky enough to get selected in a random drawing. Pass Go, pay $3,000.
This strikes me as fundamentally wrong.
Still, I can see the copyright owner’s point of view to an extent. Piracy is a legitimate problem. (Here I mean piracy in a small sense: individuals downloading works rather than joining the pay-for-a-membership site.) Why would some people choose to pay for something when it’s available so easily for free? The copyright owners have to have some way to enforce their rights.
I just think this method they’ve chosen catches too many people who are innocent. Somehow, the playing field needs to be leveled. I don’t have the answers, but I keep thinking about this because it bugs me. Maybe the federal courts should adopt a practice of requiring more evidence of actual infringement before a defendant can be named. Congress passed a law to require federal judges to carefully review lawsuits filed by prisoners in order to weed out the frivolous ones (like a claim that changing the breakfast cereal from Captain Crunch to Frosted Flakes violates the Eighth Amendment). Perhaps a similar law should be enacted here to weed out the potentially baseless claims.
Some might say that such steps are unnecessary. I disagree. Where there are huge amounts of money being taken from potentially innocent parties, some steps need to be considered to protect the wrongly accused.
While people smarter than me try to figure that question out, I have some free advice. First, make sure your wireless network is secured with a solid password. That will help keep the unscrupulous neighbors from creating a headache for you. Second, make it clear to everyone in your home that downloading copyrighted works is forbidden. If a plaintiff even thinks someone in the home did it, the vacation savings are going to be wiped out. Third, write to your representatives in Congress and ask that they do something about this. Tell them your vote will depend on whether they support innocent users or the porn copyright trolls. (Hey, if single-issue organizations like the NRA or pro-life groups can make politicians run scared, we ought to be able to do the same).
Finally, if you do receive one of these notices from your ISP, don’t ignore it. Check out these resources from the Electronic Frontier Foundation and move quickly to respond.