Last week’s feature story (“Porn, Piracy, and BitTorrent”) 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. But all are freaked out when they get a threatening “John Doe” letter in the mail. So here’s how one Seattle attorney advises people to act if they receive one.
Lory Lybeck is a partner in the Mercer Island-based firm Lybeck Murphy, LLP. He previously led several high-profile clashes against the Recording Industry Association of America during the organization’s campaign against file-sharers, and now represents hundreds of accused BitTorrent-using John Does. Lybeck says accused file-sharers generally have three options once a suit has been filed against them. They are:
“Quash” it. 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 of “John Doe” in the court filings.)
There’s only one problem: “A motion to quash is almost universally unsuccessful,” says Lybeck, because judges have typically ruled that no harm can come to a defendant until they are identified by name. “It’s not really practical.”
Negotiate. 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 and $10,000, often payable by credit card online, to make the case go away, no questions asked. Lybeck says his clients can remain anonymous (often a factor, given the compromising nature of the films involved—see above), and that once the settlement is paid the case is closed, permanently. Even if you are falsely accused of executing the download, the sad reality is it’s cheaper to pay up than to strike back in court.
Ignore it. 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. Many judges have nixed the sort of sprawling 20,000-plus-defendant lawsuits that made pursuing 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 that 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 [of] 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.”
The Five Funniest Porn Titles Involved in BitTorrent Piracy Lawsuits
5. Shemales From Hell This title raises the question: Are there shemales from heaven?
4. Teen Anal Nightmare 2 This one sounds less like porn and more like the aftermath of a bad dining experience at the food court.
3. Relax He’s My Stepdad 2 Ironically enough, this case was filed in West Virginia, a state that’s been the butt of countless kissing-cousins jokes.
2. A Punk Rock Orgy in the Woods What makes the orgy punk rock? Are the Sex Pistols providing the soundtrack?
1. Nude Nuns With Big Guns Technically this isn’t so much a porn as nunsploitation action schlock. But the title is too good to pass up. keegan hamilton