If you haven't yet read this week feature story--"Porn, Piracy, and BitTorrent"--do so now. It is relevant for everyone with an Internet connection, particularly people who use a shared or open Wi-Fi connection and/or engage in BitTorrent file-sharing. The subject is a relatively new legal tactic in which copyright attorneys lump thousands of anonymous Internet-surfing "John Does" together in a single lawsuit, suing them for (allegedly) illegally downloading and hosting movies, frequently of the pornographic persuasion. Most of the accused pirates are guilty as charged. Some are innocent.
Here's how one Seattle attorney advises people to act if they receive one of the threatening "John Doe" letters in the mail.Lory Lybeck is a partner in the Mercer Island-based firm Lybeck Murphy, LLP. He previously led several high-profile clashes against the RIAA during the organization's campaign against file sharers, and he now represents hundreds of accused BitTorrent-using John Does. His firm's website "Download Defenders," and blog, "Troll Defense," offer a nice overview of the legal landscape when it comes to these lawsuits, as well as examples of previous and on-going cases.
Lybeck says accused file-sharers generally have three options once a suit has been filed against them. They are:
1. Filing a "Motion to Quash." This requires hiring an attorney, and Lybeck says most competent copyright lawyers won't do it for less than $5,000. The motion basically asks a judge to deny the plaintiffs (the attorneys who filed the suit on behalf of a film studio) the ability to force Comcast and other Internet Service Providers to divulge information about the IP address that did the downloading. (The plaintiffs track pirates by their IP Addresses, so they don't have details like names and mailing addresses until the ISPs hand 'em over, hence the use "John Doe" in the court filings.)
"A motion to quash is almost universally unsuccessful," Lybeck says, because judges have typically ruled that no harm can come to a defendant until they are identified by name. "It's not really practical," Lybeck says. "Unless you find a lawyer in that jurisdiction [where the case was filed] who doesn't really know what's going on, because anyone who knows what's going on would not file a motion to quash. But, what we do, if there's a special circumstance such as active military service, we handle those for free and typically get those dismissed."
2. Negotiate a settlement. The lawyers doing the suing know that it's cheaper for you to pay them than to fight the case. They generally ask for a settlement of anywhere between $1,500-$10,000, often payable by credit card online, to make the case go away, no questions asked. Lybeck's job is to drive a hard bargain.
"Most typically, we directly negotiate on a flat-fee basis, and attempt to resolve the case for less than [the John Doe] would have to pay directly to the plaintiffs," Lybeck explains. "We're in the business of resolving cases quickly and efficiently, and that includes economic efficiency."
Lybeck says his clients can remain anonymous (often a factor, given the compromising nature of some of the films involved), and that once the settlement is paid the case is closed, permanently. Even if you are falsely accused of doing the download, the sad reality is it's cheaper to pay up than to strike back in court. (Of course, not everyone is so quick to roll over; a Massachusetts "John Doe" has filed a $5 million class-action lawsuit against his accusers.)
3. Ignore the letter and do nothing. This is the strategy advocated by Ernesto, the author behind the popular website TorrentFreak. The idea is that, because of the number of individuals involved in the lawsuits, it's too expensive and troublesome for the plaintiffs to take the additional legal steps to go after non-responsive targets.
Lybeck, though, says this tactic has some serious risks. The first and most worrisome, is that if the plaintiffs do take action and you continue to do nothing, you risk a default judgment of $150,000. More common is that the attorneys will continue pressing for a settlement, but their demands will increase because you've caused them a hassle. In other words, a problem that could have been fixed with a $1,500 payment will now cost $10,000 or $20,000.
Many judges have nixed the sort of sprawling 20,000-plus defendant lawsuits that made pursing scofflaw John Does so unlikely. Now many pirate-hunting attorneys are filing smaller suits, with less than 100 defendants, in local jurisdictions. In these more recent cases, the odds of the plaintiffs will doggedly pursue John Does who bury their heads in the sand are much higher.
"It used to be that you had as much of a chance of getting struck by lightning twice than these guys going after you," Lybeck says. "But the system is changing and it makes it harder to ignore those letters. If you do that now, typically the charges will double or triple for the opportunity to settle."