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The Changing Face of Torrent Litigation

By Konrad Sherinian

Mass copyright litigation (torrent litigation, file sharing litigation, what have you) is a hot topic right now – hundreds of these suits have already been filed this year in Illinois courts, with many of them naming tens or hundreds of defendants.  Unlike most lawsuits, where the defendants are companies or wealthy individuals, the defendants in mass copyright lawsuits are ordinary people.  Various Internet sources post advice for people who are faced with one of these lawsuits – and in many cases, following that advice can lead to disastrous results.

In particular, the tactics of mass copyright plaintiffs (referred to elsewhere colloquially as “copyright trolls”) are changing.  In the past, many Doe defendants simply ignored subpoena letters from their Internet Service Providers.  The Does reasoned that even if the copyright plaintiff has their information, they could just ignore the plaintiff’s attempt to settle with them, and the copyright plaintiff would eventually give up.  Given the enormous amount of unlicensed copying that occurs via P2P file sharing networks (primarily BitTorrent), and the large number of defendants that copyright holders have been pursuing, this tactic was quite successful for a time.  In fact, until recently, most mass copyright plaintiffs would pursue very few (if any) Does that refused to respond to settlement demands.  So it should not be a surprise that many out-of-date sources, and even a few out-of-date attorneys, still feel that this is the appropriate response to a subpoena letter from your ISP.  Be aware, the situation has markedly changed.  Copyright plaintiffs are now regularly pursuing default judgments against Doe defendants that ignore the cases against them.

A default judgment is a legal judgment by the Court that is entered when a party refuses to answer claims brought against them in Court, or refuses to participate in litigation advanced against them.  A default judgment has the same force and effect as a normal judgment, with a few exceptions.  As judges view a party’s refusal to participate in litigation as tantamount to contempt, a plaintiff will normally obtain a judgment for whatever amount s/he asks for (normally the maximum).

A few examples of recent default judgments in file sharing cases follow:

1) The Southern District of Indiana recently granted a default judgment of $151,425 against a BitTorrent defendant.  See CP Productions v. Gerald Glover, Case No. 12-CV-808 (S. D. Ind. Mar. 26, 2013).

2) The Northern District of Illinois recently granted a default judgment of $1,500,000 (1.5 million dollars) against a BitTorrent defendant.  See Flava Works v. Kywan Fisher, Case No. 12-CV-1888 (N.D. Ill. Oct. 30, 2012).  See also Flava Works v. Cormelian Brown, Case No. 12-CV-5088 (N.D. Ill. Oct. 19, 2012)(another $1,500,000 default judgment).

3) The Southern District of Florida recently granted a default judgment of $153,770.  See AF Holdings v. Darryl Lessere, Case No. 12-CV-22156 (S.D. Fla. Oct. 9, 2012).

There are numerous other examples, almost all within the past eight months.  The lesson of these is simple – if you ignore a subpoena letter from your ISP, the plaintiff is very likely to pursue a default judgment against you, and YOU can be hit with a very large judgment.  Make no mistakes about it – the copyright plaintiffs listed above will pursue their judgments against the named individuals – wages will be garnished, cars will be repossessed, houses will be taken, and lives will be shattered.  If you receive a subpoena letter from your ISP, DO NOT IGNORE IT.

Another tactic that worked extremely well in the past, but is no longer as effective as it once was, is the tactic of filing a motion to quash the plaintiff’s subpoena to a Doe’s ISP based on improper joinder.  Many judges will routinely grant these motions, and, if granted, all Does but one will be dismissed from the case, and all of the outstanding subpoenas (except against the remaining Doe) will be quashed.  The dismissals are without prejudice; meaning that the copyright plaintiff can file suit against that Doe again.  That is exactly what mass copyright plaintiffs are now doing.  See  https://illinoisiplitigation.wordpress.com/2013/02/12/doe-files-motion-to-quash-subpoena-ends-up-in-suit-alone-against-malibu-media/.  Trying to file a boiler plate motion to sever (and quash the ISP subpoena) is no longer a winning tactic.

At least one mass copyright plaintiff – Malibu Media – apparently  became frustrated with the delays that severance motions had on their cases, and has started to file cases against individual Does.  This effectively takes the entire tactic of filing a motion to sever (and thereby quash the subpoena to the ISP) off the table.  A few examples that have been filed in the Northern District of Illinois in the past few days are 2013-CV-2427; 2013-CV-2505, and 2013-CV-2507.

There is still plenty that can be done when you receive a subpoena letter from your ISP.  Quite frankly, many of the mass copyright infringement cases that are filed are legally tenuous, and all of them can be defended if necessary.  The following is the start of an action plan you may consider if you receive a subpoena letter from your ISP:

1) Act Quickly:  You need to act prior to the date when your ISP hands your information over to the mass copyright plaintiff.  Unless you are extremely poor, plaintiff’s will expect more once they have your information.  In particular, given the resources available on the Internet, a plaintiff can quickly and inexpensively determine if you rent or own, who your employer is, about what your salary is, and, in some cases, even what kind of car you drive.  In addition, many of the attorneys that bring mass copyright infringement cases represent numerous clients, and almost all of these cases are brought on a contingent fee, meaning that the attorney does not get paid until s/he recovers money from various defendants.  The cost of obtaining personal information about Does is very high – it requires a successful subpoena on an ISP, which can take many months.  Once they have your information with regards to potentially copying one client’s content, there is little to prevent them from using that information to bring a claim for a second client – and without having to spend the money necessary to obtain your information a second time.

2)Obtain Representation:  A skilled attorney can explain your options to you, keep your identity secret, and help you formulate the right option as to how to proceed with the case.  And, if you select an attorney who regularly deals with these matters, he or she will likely be skilled in presenting your case in the best light possible, which may compel the plaintiff to drop the case, or settle for less money.

3) Have your Attorney Seek a Demand:  Once you know what the copyright plaintiff wants, you can figure out the right way to proceed with the case.  If the demand is low enough, consider paying it or negotiating further.  If it is crazy, your attorney can advise you whether your case can be won.  While litigating a copyright case can be quite expensive, if you prevail, the copyright plaintiff may be forced to pay your attorneys’ fees.

There is no doubt that a subpoena letter from your ISP is stressful, and most families would rather not deal with this stress.  However, ignoring it will only make a bad situation far worse, and attempting to address it using some of the outdated tactics described above can be almost as bad.

The author is the managing partner of the Law Offices of Konrad Sherinian, LLC, a boutique intellectual property and commercial litigation law firm in the Western suburbs of Chicago.  The Law Offices of Konrad Sherinian, LLC is one of the leading mass copyright defense firms in the United States, and Mr. Sherinian has personally defended numerous Doe defendants from accusations of copyright infringement due to their alleged participation in file sharing.  

The Law Offices of Konrad Sherinan, LLC

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