From the Law Office of Gary Ruff: This site deals with two types of infringement: unauthorized or unlawful exhibition of sporting events and unlawful downloading. 

 

UNAUTHORIZED EXHIBITION (UNLAWFUL EXHIBITION)

 

It should be understood that both signal providers and copyright owners do, in fact, have a valid legal claim under federal law.

 

 A “demand letter”, such as you have received, is typically supported by a professionally done and detailed investigative report.

 

The rights owners have experienced attorneys who are prepared to commence a civil prosecution against you. Unless they can be convinced they have no claim, or a settlement occurs, a “Summons and Complaint” (usually returnable in your local Federal District Court) will be forthcoming). Click here for a copy (taken from the public record) of a typical “Complaint”.

 

This is a complex and little understood area of the law. I know of no one else on the defense side with my knowledge and experience.

 

These are fact sensitive cases. One must know which factual issues are important in order to negotiate a satisfactory settlement

 

Be aware: it is not just the settlement sum that is important – it is also the settlement terms (which on plaintiff’s initial demand are usually outrageous). The terms (especially the release – which is what you will get if you settle) also demand negotiation.

 

Do not default (fail to respond to a Summons). One must either settle or defend. The consequences of ignoring all this will lead to a federal judgment against you (although occasionally in the low five figures, an unauthorized exhibition case can run into the mid 5 figures, and even higher - depending on the facts and the discretion of the judge). Click here for the disposition on the above “Complaint”

 

It should be understood that as these are civil (rather than criminal) cases, the burden of proof is “preponderance of the evidence” or “which is the most likely” - not “proof beyond a reasonable doubt”. Accordingly, civil cases are generally much easier to prosecute (and therefore harder to defend) than criminal cases.

 

A judgment is quite competent to lead to seizure of your assets and perhaps financial ruination - and once a judgment issues, it is almost impossible to get it vacated or reduced.

 

Click here for a copy of Gary’s Unauthorized Exhibition Retainer Agreement.

 

 

LAWSUITS FOR ILLEGAL DOWNLOADING OF MUSIC OR MOVIES

 

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”.

If a minor is at the heart of the problem, information is available here.

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 use programs known as “sniffers” that scan the web in order to identify unauthorized downloads in progress. They then identify the web address of the ISP (Internet Service Provider) and then seek to identify the individual subscriber by placing a request with the ISP, or filing a lawsuit for “copyright infringement” and then subpoenaing the records from the ISP.

 

Please note: Copyright owners have recently modified their tactics. As the culprit was usually identified to be a minor, the copyright owners now generally confine themselves to asking the ISP to act as an intermediary and forward their grievance to the offending subscriber (whose name is withheld by the ISP). The subscriber is then asked to make a representation that the problem has been addressed. However, the procedure outlined below was used for some time and is still available to them.

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 Federal District Court in which the ISP is located. As commencement of a lawsuit creates subpoena powers for all of the parties, a subpoena for subscriber identification information is sent to the ISP. Unless the subpoena can be “quashed” (extremely unlikely - see ELEKTRA ENTERTAINMENT GROUP, INC. v. Does 1-7 ), the ISP is required to surrender the information.

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 Federal District Court in which the subscriber does reside.

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 Gary Ruff presents the preceding as a public service. Gary is experienced in defending against electronic piracy and infringement lawsuits. His experience and familiarity with the subject, together with “economies of scale”* permit him to provide these services for very reasonable fees.

 

*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.

 

Download Unlawful Download Retainer Agreement

 

                                                                                               

 

The Law Office of Gary Ruff

        “Defending Consumers Against Electronic Piracy Claims” TM       

garyruff@optonline.net

 

200 Broadhollow Road, Suite 207

Melville, N.Y. 11747

Fax: (631) 389-2800

545 8th Avenue, Suite 401

New York, N.Y. 10018

Tel: (212) 696-7488

Other sites from the Law Office of Gary Ruff:

http://www.piratecardblues.com/

http://www.pirateboxblues.com/

 

Copyright © 2002-2009 by Gary Ruff; all rights reserved. May not be reproduced in any form without the express permission of the author, except that “links” to the site are permitted. Contact author at 631.390.8338