From the Law Office of
LAWSUITS FOR ILLEGAL
DOWNLOADING OF MUSIC OR MOVIES
If your ISP (Internet Service Provider) has noticed you that they are
in receipt of a subpoena requesting information about you and your internet
activities or if you have received a RIAA or MPAA letter, or a “COMPLAINT FOR
COPYRIGHT INFRINGEMENT” asserting that you (or someone at an IP address that is
associated with your name) engaged in illegal file sharing and demanding that
you settle a lawsuit for copyright infringement, here are a few important
points. Please understand that, for the sake of clarity, I have oversimplified
a little.
Of
course, the ISP will be in possession of the identifying information for the
person to whom the account is registered. Frequently (especially if a
residential subscriber is involved), the person in whose name the account
resides is not the person who has been engaged in the unlawful activity. If you
are not the only person with access and credit for the problem resides with
another person, it won’t necessarily be easy to place the blame where it
belongs.
If a
minor is at the heart of the problem, information is available here.
The federal statutes under which copyright infringement lawsuits are
made set forth both criminal*
and civil
penalties. The fact that a court may award attorney
fees is a major consideration in litigating cases such as these.
*Your editor would like to express his gratitude to the LII for their
public service in permitting “links”.
Unlike
a criminal proceeding wherein the state must prove their case against you “beyond
a reasonable doubt”, a plaintiff in a civil proceeding has the easier burden of
proving the case by only a “preponderance of the evidence”, or which is the
most likely (51% will do it). A case
brought by a copyright owner seeking civil penalties is a civil case.
Copyright
infringement, together with related and subjective concepts such as “fair use”,
is a complex study. If, for example, one purchases a CD and thereafter copies
the songs to a cassette in order to play them in the car, the “fair use “
argument may be a viable defense to an infringement claim. However, you will
certainly violate the copyright laws if you engage in unauthorized “uploading”
(making it available to others) of a complete copyrighted work- even if you
purchased your copy of it, or you make for yourself an unauthorized “copy” or
reproduction of a complete copyrighted work that you did not purchase.
Copyright
owners utilize electronic methods to identify the IP address of suspected
file-sharers. Armed with the IP address of the alleged (but unidentified)
offender, the copyright owner will commence a “John Doe” lawsuit. Immediately
upon commencement of a lawsuit, any party to the suit can, on motion, subpoena your ISP
for any non-privileged documents (including data compilations) which are both
in their custody (or under their control) and relevant to the claim or defense
of any party to the action. Unless the
subpoena can be quashed, the law will demand compliance with it.
As to the
“quashing” of subpoenas, a couple of points need to be made: Initial efforts to
get ISP’s to disgorge subscriber information involved making application for a
subpoena to the clerk of the court pursuant to the DMCA (Digital Millennium
Copyright Act). This procedure continues to be rejected by the various federal
district courts and has fallen into disuse by the copyright owners. The current
and far more successful practice is as follows (the reader is again reminded
that this is oversimplified):
A
lawsuit, naming each defendant as a numbered “John Doe” is commenced in the
Armed
with the identifying information, the copyright owner will do one of two
things: If the subscriber resides within the area covered by the District Court
in which the lawsuit was filed, the “John Doe” information will be updated to
identify the actual defendant. If the subscriber resides in an area outside of
the area covered by the District Court in which the lawsuit was filed, they
will usually file another lawsuit in the
A decision as to whether to seek
an immediate discontinuance based upon error or insufficient evidence; or
whether to litigate or settle, is driven by three basic considerations:
An
understanding of your legal position, which requires a competent professional
evaluation of the factual circumstances associated with your individual
situation;
if a
decision to settle is taken, in return for the settlement sum you will receive
a “release”- the terms of this release are extremely important;
the
settlement sum, which is negotiable- if in fact settlement is recommended.
As copyright infringement
lawsuits involve federal statutes, these cases are litigated in federal court.
Generally speaking, federal court proceedings are elaborate proceedings
(frequent mandatory conferences and procedural protocols). And, as I mention
above, the relevant federal statutes involved in copyright cases may place
attorney fees for the adversary upon the losing party (which, of course, means that
you can recover your attorney fees if you win). Regardless of who is to pay,
attorney fees for a full litigation on the merits can easily outsize the value
of the claim – a consideration that can frequently be turned to the defendant’s
advantage. Therefore, the key for a defendant in a case such as this is to
proceed as economically as possible by immediately
initiating an important tactical move (which is capable of both significantly
scaling-down the proceedings and significantly reducing settlement demands).
Although these websites were calculated to provide
helpful information, it is disconcerting to be suddenly and unwillingly cast
into a situation you do not understand. Even if you are a fast study, the law
relevant to infringement proceedings is complex and the courts have developed
varying interpretations thereof. Moreover, plaintiffs and their agents do a lot
of posturing*
regarding both settlement sums and terms of release. However, they are well aware as
to which attorney has the specialized knowledge and command of the subject
necessary to have prompt and significant impact upon the outcome.
*Assertions
that exaggerated or inflated positions are policy and which disassemble when
confronted by a knowledgeable specialist.
Moreover, it is difficult to
negotiate for yourself without making admissions or imparting incriminating
information to the adversary.
The Law Office of
*For
example: the vast majority of necessary court papers, discovery demands, and
motions used in defending these claims are already in our computers. When that
is the case, we don’t have to charge you to research and write a new document;
instead, we charge you considerably less to edit and submit the one in our
files.
If your problem involves the “unauthorized
exhibition” of a
boxing or wrestling match, or another sports or special event, download Unauthorized Exhibition Retainer
Agreement
“Defending Consumers Against Electronic Piracy
Claims” TM
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Tel: (212)
696-7488 |
Other sites from the Law Office of
http://www.piratecardblues.com/
http://www.pirateboxblues.com/
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