Graham Syfert is a Criminal Defense Attorney in Jacksonville, FL
Wednesday, February 9, 2011
Sued for illegal downloads? Mass Bittorrent Litigation: An overview of the procedures and issues
Graham Syfert is the author of Self-Help forms for mass bittorrent litigation suits such as Maverick Entertainment, Voltage Pictures, Lightspeed, all versusa number of John Does. The forms are available through his website.
This guide is designed to be a primer on the procedure and an overview of the issues in current bittorrent litigation cases. It is designed to inform the average defendant of the available options for their defense, or settlement, of bittorrent litigation. This is not legal advice. It is merely a discussion of the pros and cons of settling or defending a lawsuit brought by an illegal download of a movie on bittorrent. Everyone's case is different. Hire an attorney.
This article is current as of the date that it was written and will not be updated.
I received a letter from my ISP stating that I can file a motion to quash a subpoena, what can I do?
This means, that somewhere, wherever the lawsuit happens to be filed, the people who are suing you for allegedly downloading a movie are trying to reveal your identity. Your Internet Service Provider (ISP) does not have records of your internet traffic, but can, given certain information (your IP address), figure out what internet subscriber created the traffic. Where did they get your IP address? It is likely that a security company with a cyber security division was monitoring bittorrent traffic associated with the download of that particular movie.
A motion to quash is a legal court pleading which asks the court not to reveal your identity to the Plaintiff. As of the date of this writing, the author can think of only two scenerios where a motion to quash might be successful: Witness protection program, or potential violent harm that might come as a result of the ISP revealing that information. Neither of these two are very likely scenerios to come about. Motions to quash do however, create more work for the people suing you, and therefore it will take more effort to reveal your identity. The issue that this presets in both hiring an attorney and trying to defend yourself is that you might make yourself a bigger target. If you have questions as to what makes you a bigger target, consult an attorney in your area as laws differ from state to state.
The lawsuit was filed in Washington D.C., Illinois, Texas, West Virginia, or some other state that I don't live in. Why?
It is more than likely that the lawsuit was filed before your identity was revealed. Most courts have not yet decided on one sticky issue. Essentially, rules are in place in the Federal Court system as well as most state court systems which have to do with where a person can be sued. In general, it is almost always appropriate to sue a person WHERE THEY ARE LOCATED. This does not mean that an opposing person needs to sue you in the closest courthouse, but they do need to be in the right judicial district.
So, how are they suing you so far away? First, it is likely that the case was a John Doe case. Once your identity has been revealed, you SHOULD be dismissed from the case. This will not stop the Planitiffs attorney from telling you that YOU have been sued in court, but if they are in the wrong state, chances are JOHN DOE was sued as a place holder for your name, and when your name is identified, in one way or another, that case should be dismissed for lack of jurisdiction. If the case is not dismissed automatically, an attorney in that area can file a motion to dismiss on your behalf unless you are defending yourself.
If you wish to fight, and have made up your mind that you will not settle under any circumstances, you should hire an attorney in the LOCATION WHERE THE SUBPOENA WAS FILED, and have him petition for dismissal in that location. Then, wait for the Plaintiff's attorney (see common law firm names below) to sue you in YOUR LOCATION and hire an attorney in your state.
I received a demand letter for $_______ from __________(insert law firm name here), what can I do?
Law firms included in this list are John Steele of Steele Hansmeier PLLC, Nicholas Kurtz of Dunlap Grubb and Weaver, the USCG or US Copyright Group, and many others. If the letter claims that you downloaded a movie, and is looking for money from you for doing so, then your identity has already been revealed and so a motion to quash will not protect your identity. It seems simple enough. They already have your information. They wanted your address to send you this letter, and they got it one way or another.
To Settle or to Fight
For the question "Am I innocent?" you should consult with an attorney before jumping to conclusions. Some states may may hold you accountable for the actions of a minor child under your supervision, but this is rare theory of liability.
If you are innocent, and did not download a movie or have any knowledge of the act, the good news is, you are probably not liable. The bad news is that it will cost you time and money to prove otherwise. One potential joy after hiring an attorney and taking the matter to trial is that you may recover what you paid in attorneys fees.
If you decide to settle, make sure you keep accurate records. If your IP address changed in the middle of a bittorrent download, it is possible that you might be sued twice or receive multiple demand letters. Of course, with deciding to settle a case, you should again, always contact an attorney.
Deciding to settle or deciding to fight is why people hire an attorney. However, for those of you who answered yes to "Am I innocent?" after consulting with an attorney, you should contact that attorney immediately and tell him you want to fight. You may be entitled to attorneys fees if you win at trial.
To Settle or to Fight (Issues besides innocence)
Lawsuits such as those began by LFP, Larry Flynt Publishing ( Hustler ) and other lawsuits involving Pornography present a bigger issue. How many people who like to end up being known as the guy sued for downloading pornographic material? This, of course, is a great benefit to the Plaintiff's attorneys trying to get money from the cable subscriber. Not only is there the threat of a lawsuit hanging over their head, but potential embarassment as well.
Plaintiff's attorneys will give you bare facts in their letters to scare you into settling out the case. Information is great, but understanding is better. You can arm yourself with stacks of case law, and even get good at writing legal documents. No matter how much you know, a lawyer will always be more comfortable than you in the court room.