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The 5 Steps You Need to Take When You Receive an ISP Subpoena Letter
Copying music, movies and software over the Internet with BitTorrent is now quite common. Sandvine recently published information on how much Internet traffic major applications used, and BitTorrent ranked as the #1 upstream application, the #4 downstream application, and the #4 overall application behind Netflix, YouTube, and HTTP. What’s worse is that many people don’t even know that it’s illegal to use BitTorrent or other file sharing programs to copy content. Given this background, it should come as no surprise that copyright holders have become increasingly aggressive in going after Internet files.
While file-sharing lawsuits began a number of years ago based on the sharing of music on services such as Napster, Grokster, and LimeWire, the vast majority of mass-copying lawsuits now focus on BitTorrent. Torrent lawsuits usually take the form of a copyright holder suing numerous “John Doe” or “Doe” defendants. The defendants are named as John Doe because the copyright holder knows them only by their individual IP addresses. However, once litigation is initiated, the copyright holder may seek permission from the Court to issue subpoenas to the Internet service provider(s) of the various Doe defendants in the case. The subpoenas to the ISPs will seek identifying and contact information for the Does in the case, including each Does’ name and address, and usually phone number and email address.
If you have received an ISP subpoena letter informing you that your information will be turned over to a mass copyright claimant in the near future, you and your family are probably under enormous stress. Additionally, there is a lot of conflicting advice on the Internet – most of it posted by non-lawyers, or by lawyers who have handled little if any of these types of lawsuits. Plus, most online resources don’t really provide actionable advice. Below is an action plan that I recommend to clients, and hopefully it can help you resolve your copyright dispute.
Action Plain
1. Do not ignore the Summons Letter. Make no mistake about it – you’ve been accused of copyright infringement by copying content over the Internet, and the copyright holder has filed a lawsuit. This is no laughing matter. There is a lot of bad advice on the internet that says you can just ignore an ISP subpoena letter. However, default judgments in excess of one million dollars ($1,000,000) have been granted in several file sharing lawsuits where Does chose to ignore ISP subpoenas. Ignoring an ISP subpoena can literally ruin your life – don’t do it.
2. Act quickly. Take the ISP subpoena letter seriously and get started on it right away. With each case, the key parameter of your action plan is whether you will fight or settle the claim. You’ll want to determine this before the date your ISP turns over your information to the copyright holder. In particular, unless the copyright holder is prohibited from publicly listing you, the copyright holder will be free to do so once it has your information, giving the copyright holder additional leverage over you (especially if the content you are accused of that you copied is pornographic). Similarly, obtaining information about file sharers is expensive for copyright holders – it requires a successful subpoena. Once your name is “out there”, it is much more likely that a second copyright holder will decide to follow you.
3. Get the facts. The first step in determining whether you want to fight or settle the case is to determine whether the accusations made against you are true. Here is a checklist for your investigation:
General Background Questions
- Who are the computer users in your home?
- Of all the computer users, are any of them under the age of 18?
- Do you or anyone else in your household copy content over the Internet?
General computer questions
- What is the make and model of the computers in your home, including desktop computers, laptops, servers, smart televisions, gaming platforms, digital media players, including DVD players, Blu-Ray players, game consoles, gaming devices, smart phones and tablets.
- Is a BitTorrent client installed on any computer in the house? If so, which one?
- Is anti-virus software installed on any computer in the home? If so, which one?
- Who is your broadband internet service provider?
- Who is your cable or satellite service provider?
- Who is your wireless service provider?
Network Questions
- Is your network completely wired, or is there a wireless router?
Wireless router questions
- What different networks are configured for wireless access? For example, it is common to set up a “full access” network and a “guest” network.
- Does each network have a password or is it open?
- For every network with a password, who knows the password?
- Does the router keep a network access log and does it show any unexplained activity?
Based on your investigation, you should be able to put together a picture of what really happened. Have you or someone in your household actually used BitTorrent to copy copyrighted content? If so, who did it? Is it possible that your computer has been hacked? If so, do you have evidence to support this?
4. Contact a lawyer. A skilled attorney can explain your options in much more detail than a short article like this. Additionally, should you choose to negotiate a settlement, an attorney can arrange for your identity to be kept secret from the copyright claimant. Most importantly, a skilled attorney can provide guidance on the right approach to take with your case.
Ideally, you will want to contact an attorney who (1) has handled a number of these cases, (2) is capable of litigating a case rather than just “negotiating a settlement” and (3) permitted is to practice in your state and in the particular United States district court in which you reside.
First, file sharing cases are steeped in copyright infringement at their heart. Most lawyers have never and never will handle a copyright infringement case, and have no knowledge of the particular peculiarities of copyright infringement claims. As a result, an attorney who has handled a personal injury claim for someone you know is unlikely to be the right choice to handle this type of claim. The same goes for an attorney who handles DUI claims or divorces.
Second, many intellectual property attorneys familiar with copyright law rarely if ever actually litigate cases. As a result, they are not going to have a feel for the real dynamics of your case, such as how experienced the other side’s attorney is, how much is a reasonable settlement, etc.
Third, a lawyer can only litigate a case in courts to which he/she is admitted. For example, copyright litigation attorneys at my firm are admitted to the United States District Court for the Northern District of Illinois, and the United States District Court for the Central District of Illinois. While most file sharing cases are resolved without major litigation, your case may require major litigation – if your chosen attorney is not admitted to the Court in which the case will be heard, he/she will need to retain local counsel, which only adds to your expense .
5. Have your lawyer search for a demand. Once you know what the copyright claimant wants, you and your attorney can determine the best approach to take with your case. In particular, if the demand is low enough, consider paying it or letting your lawyer negotiate further. On the other hand, if the demand is high, your lawyer can advise you whether your case can be won. You should know that litigating a copyright case is quite expensive. Many firms, like my firm, offer ordinary families who are forced to litigate these claims advantageous terms so that they can fight a claim if necessary. Additionally, if you win your claim, the copyright claimant may be forced to pay your attorney’s fees.
If you have received an ISP subpoena letter, there is no doubt that you are under a lot of stress. You undoubtedly want to resolve the situation as soon as possible. However, it is important to approach this decision carefully and emotionally. I hope that the action plan I have outlined can help you do this.
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