Recently, the copyright trolls seem to be getting active again with their latest target being internet users — persons illegally uploading and downloading copyrighted content without permission and without a license. The trolls’ activity takes the form of settlement demand letters to the identified parties. These letters are not a hoax, a stick-up, or a shakedown. They are genuine.
Everyone who has ever seen a movie in the last 30 years knows that infringing copyright by making an unauthorized copy of a movie is a civil and can be a criminal matter. In a civil setting, statutory damages can amount from $750 to a maximum of $150,000 per infringement—and uploading or downloading a single movie constitutes an act of infringement. The trolls are also well aware of the usual costs of defense of a typical copyright case. Copyright trolls also know that judges tend to be unsympathetic to willful copyright infringers that decide to fight in their court rather than settle a case. While the settlement demand letters may appear outrageous on their face, copyright trolls rely on the defendants’ knowledge of the potential for exposure and the costs of defense to secure settlements of their claims. Rest assured the trolls no more want to try the case (spending their time and expenses, and risking an adverse judgment) than you do. Using this analysis trolls demand somewhere in the range of $3,000-$7,500 to settle their allegation of copyright infringement for a single uploaded or downloaded movie.
The notice to alleged infringers starts with a notification from your internet service provider (“ISP”). The copyright owner has already filed suit, and has named “John Does 1-27” as placeholder defendants. The copyright owner also has identified the IP addresses that they associate with infringement events through the ISPs. Frequently, the infringing activity has been conducted through the use of BitTorrent or some other peer-to-peer file sharing (“P2P”) protocol which is used to distribute data and electronic files through the ISP. But at the initiation of their case in federal court, the trolls need to direct a subpoena to the ISP, demanding the ISPs to reveal the names of the users associated with the IP addresses.
Once the ISP is subpoenaed, the ISP will notify the potential offending users that their name will be revealed in the context of the discovery in the litigation. This letter should not be ignored, and a recipient of the letter should run, not walk to the nearest intellectual property litigator to handle the matter. If you receive such a notice from your ISP that a movie producer or copyright owner is seeking your personal identity, you have every right to challenge the subpoena and to challenge the release of your personal information. You can only do this anonymously through a litigator such as an intellectual property lawyer. If successful using the subpoena, once the name of the owner associated with the IP address is identified to the movie producer or copyright owner, a “John Doe” and “Jane Doe” litigation assertion will be converted into a litigation with real, named parties. And if you have been identified in response to the subpoena by your ISP, you will then start receiving correspondence directly from the copyright owner.
A word of warning. It makes no sense once you’ve been accused of copyright infringement to either try to delete the files, or attempt to purchase a physical copy of the work that you alleged infringed. A subsequently purchased copy of the work does not provide any legitimate defense. Deleting the files, which can be later uncovered by forensic experts, tends to underscore the guilt, and may lead to damaging if not altogether fatal jury instructions on spoliation.
If you receive a notice from your ISP that your name is being sought in connection with a copyright infringement suit, or if you have received settlement demand correspondence from a copyright owner, do not think it will go away. It is genuine. Please feel free to contact the undersigned. The matters can be handled and resolved expeditiously and economically up front, at many times for a modest fixed fee. The longer that matters proceed in litigation, the more invested the copyright owner’s lawyer becomes in the litigation and the more money the copyright infringer will want to recover to compensate for the invested time in litigation before settling the case. In other words, settling early in these types of cases may ultimately be the least expensive way to go. (If you haven’t ever received such a demand, use this short posting as a learning experience for others you may know, particularly those in the younger generation.)
We have experience in representing both plaintiffs and defendants in copyright infringement cases and in handling and settling these matters. In our view, carefully crafted settlement agreements are necessary to avoid any potential pitfalls arising from the use of such settlement agreements in further litigation should the infringer be found guilty of future transgressions.