From the Law Office of Gary Ruff:

 

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 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 Retainer Agreement

 

If your problem involves the “unauthorized exhibition” of a boxing or wrestling match, or another sports or special event, download Unauthorized Exhibition 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 8thAve., 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 © 2002-2006 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