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
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
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.
Download Unlawful
Download Retainer Agreement
The Law Office of
“Defending Consumers Against Electronic Piracy
Claims” TM
|
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
http://www.piratecardblues.com/
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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