Imagine this scenario: You receive a notice from your Internet Service Provider (or “ISP”) indicating that you have been sued as a “Doe” in a bit torrent file sharing lawsuit.
What does this mean? The notice means that your Internet Protocol, or “IP” address (not necessarily your computer, but a computer using your internet connection) has been identified as part of a “swarm,” or a group of computers involved in sharing a certain file using a bit torrent client like Vuze, or LimeWire. You have been sued because the file in question was copyrighted material, and the company who owns the copyright is suing you for copyright infringement. Unauthorized sharing or downloading copyrighted works is a violation of copyright law. Deleting the file will not make this go away. Buying a copy of the copyrighted work after the fact will also not make this go away.
If you have no idea why you have been implicated, someone in your household (using your Internet connection) may be the culprit. If your spouse, child, or roommate is responsible, talk to them about how your household wants to handle this.
Your ISP should have sent you a letter explaining that your name and personal information have not yet been divulged. Right now, you are only identified by your IP address. The letter should include two dates: one is the deadline to file any legal action contesting the subpoena, and one is the date on which your ISP will provide the plaintiff (the company that is suing you, typically the copyright owner or person assigned copyright) with your name, address, and other information as directed by the court.
If your name and address are released, you might be named in the lawsuit. This means you will no longer appear as “Doe ###,” instead your name will be listed as a Defendant in the case. Consider potential embarrassment and/or damage to your reputation if a Google search for your name returns this lawsuit, and your involvement in it.
Has this ever happened? Yes, this is somewhat standard in these cases.
Option 1: What if you just ignore the notice?
If you do not answer the complaint or file any legal action, the plaintiff may request a default judgment. This is an automatic decision by the court saying that since you did not defend yourself, the court has no choice but to decide in favor of the plaintiff (copyright owner). You will owe whatever amounts are awared in the default judgment to plaintiff, and if you keep ignoring the legal proceedings, the plaintiff could get a piece of your paycheck or your assets.
Has this ever happened? Yes. For example on October 7, 2011 in the Northern District of CA, Judge Alsup granted $20,000 default judgments against two defendants in a file sharing case.
Option 2: What if you want to fight?
Recently, many people sued in this type of case have been fighting back, which means ISPs sometimes do not release information until after the date on your letter, and some cases are dismissed entirely. Some judges have dismissed all Doe defendants except one, because of issues with the way plaintiffs group all the defendants together. This is great for the defendants who were dismissed, but very bad for the remaining defendant. You could take your chances hoping that you or your case might be dismissed, and you might be lucky. However:
Lawsuits that target “swarms” of bit torrent sharers have been contentious in legal and online communities. Lawyers who represent plaintiffs in these cases have been labeled “copyright trolls” and the lawsuits have been accused of being many things, ranging from collection rackets to extortion. At this time, none of these cases have actually gone to trial, and some people doubt that any will.
Some defendants have fought back with either (1) a Motion to Quash, which asks the court to invalidate the subpoena, or (2) a Motion to Dismiss, which asks the Court to dismiss them from the lawsuit. These motions are often successful.
You can try to write and file one of these motions without a lawyer but that requires considerable diligence and writing skills. Hiring a lawyer gives you several advantages, most notable is that when you are represented by a lawyer, the plaintiff is no longer allowed to contact you except through your lawyer, which will prevent harassment. Communicating through a lawyer means you will not incriminate yourself by inadvertently revealing personal information, or by admitting anything you shouldn’t.
What are you risking if you fight? Sometimes you can’t fight without revealing your identifying information. Even if your name and personal information are not revealed, if you reveal which IP address you are, or which Doe, the Plaintiff may decide to make an example of you and sue you individually. If this happens, the Plaintiff is far less likely to settle for a small amount, and you may end up with a larger judgment against you. Sharing or downloading copyrighted files without the permission of the copyright holder violates the law, and you might end up paying for it in court.
Option 3: How can I make this just go away?
Many people do not want to risk having their identity revealed, or do not want the risk, time commitment, or attorney’s fees associated with a legal battle. In this case, you can settle with the plaintiff, often for a few thousand dollars.
If you choose this route, we recommend you do this through an attorney, who can protect your personal information and your rights. As we noted above, when you are represented by an attorney, the plaintiff can no longer contact you except through that attorney. This means no harassing phone calls or letters. Also, an experienced attorney can sometimes get a better deal on settlement and can make sure negotiations stay anonymous and do not incriminate you in any way. Finally, an attorney's review can make sure the settlement agreement legitimately settles your case and protects your interests.
What if you are sure no one in your household was involved in illegal peer-to-peer sharing?
To defend yourself, you will need to show real evidence that you would not or could not have been involved in downloading or sharing the file. In one case, our law firm was able to prove that the client did not have the IP address at the time the alleged downloading occurred. However, that is not the norm. If someone accessed your wireless router, you would not be legally liable, but you would have to have real evidence to back up your assertion. Many people claim that someone else did it but they lack evidence to prove it. For example, a 93-year-old great-grandmother with a wireless router that is not password-protected is going to get more people to believe that she didn’t download something than a college student with a password-protected router.