Over the past several months, I have received dozens of panicked messages from people who had just received ominous letters from their internet service provider (“ISP”).The letters follow a common script:
Dear Mr. Doe:
X, Incorporated has filed a lawsuit in federal court. You have been identified via your assigned Internet Protocol address in this lawsuit for allegedly infringing X’s copyrights on the Internet by uploading and/or downloading a movie using a computer assigned the Internet Protocol address 12.34.56.78 on 9/01/2010at 2:34AM. The Court has ordered us to supply your name and address and other information to X in the lawsuit referenced above and in the accompanying subpoena, which is attached . . . . If you have any questions about the lawsuit, you should consult an attorney immediately. Your ISP cannot and will not provide any legal advice . . . .
If you have received a letter like this, let me explain what just happened to you: First, you have not been charged with a crime.
Second, this is probably not a scam (at least in my experience).The letter from your ISP is providing notice that you may be sued for copyright infringement if your ISP discloses your name and address to X, Incorporated.
So, what do you do now?Here are some frequently asked questions and some general information for you to consider:
What is copyright infringement?
Generally, copyright infringement is the unauthorized use of a work—such as a movie or a book—for which another person or company owns exclusive rights to use.For example, if you photocopy a novel for which another person owns the copyright and you sell thousands of these copies without the copyright owner’s permission, you are probably committing copyright infringement. Can I instruct my ISP not to disclose my identity to X? You can try this, but it is not likely to work.Your ISP has received a subpoena, which is a court order.A court has ordered your ISP to release your name, address, and other identifying information to X.It is possible to file a “motion to quash” this subpoena.In plain English, a “motion to quash” is simply a request that that the Court nullify something.By filing a motion to quash the subpoena, you are asking the Court to nullify it.However, the court does not have to grant your motion.In recent months, such motions have usually been rejected in this type of case.If you instinctively feel your ISP has no right to disclose your name or address without your permission under any circumstance, I am sorry to tell you that you are wrong, at least as far as the law stands now. What is the best-case scenario for me? It is possible, though unlikely, that X will never obtain your name and address.This can happen if you or your ISP moves to quash the subpoena and the court grants this motion.It is also possible, though unlikely, that X obtains your name and address but that somehow you fall through the cracks and are never contacted or sued by X.You will not have to pay any money to X in this unlikely scenario. What is the worst-case scenario for me? If you lose a copyright infringement lawsuit, the copyright owner will be permitted to either collect the “actual” damages that it suffered from your infringement or a “statutory” amount of damages.The copyright owner is permitted to elect either type of damages.If the copyright owner chooses to collect “actual” damages, it will be entitled to collect the actual amount of money that it lost due to your infringement.Obviously, this amount will depend upon the circumstances. If the copyright owner chooses “statutory” damages, it will be entitled to collect between $750.00 and $150,000.00 for each work that you have infringed upon.Any amount over $30,000.00 is available only if you are found to have “willfully” infringed upon the copyrighted work.“Willfulness,” generally, is a state of mind characterized by intent to engage in wrongdoing.If your infringement is not determined to be willful, the copyright owner will still be entitled to collect between $750.00 and $30,000.00 for each work that you have infringed upon. In addition to these damages, the court may force you to pay the copyright owner’s costs of bringing the lawsuit and its attorney’s fees. Can I fight a copyright infringement case all the way through trial? Yes, it is possible to fight X’s lawsuit against you all the way through trial and win.In this case, you would not have to pay X any damages, but you will likely be tens—if not hundreds—of thousands of dollars poorer if you have paid an attorney to achieve this result.I would be happy to assist you if your desire is to absolutely vindicate yourself in a court of law—although I cannot offer any guaranty of victory.Any time that you choose to fight a lawsuit through trial, you introduce a measure of uncertainty into your life.
It is also possible to fight this lawsuit by yourself and to win.In this case, you will not owe any money to X or to an attorney, but you will have likely expended hundreds—if not thousands—of hours of your own personal time.Time is money, of course. Is there a middle ground?
Yes.You and X can settle the case for a sum of money.It is even likely that X will send you a “demand letter” offering you this opportunity before actually suing you.If this does not occur, you are always free to propose your own settlement offer to X.In either case, I recommend – and X’s lawyers probably will also recommend – that you consult with your own attorney before signing any settlement agreement.X’s attorneys will not—and ethically can not—have your best interests at heart.X’s attorneys will propose the best possible settlement for X—not for you. What should I do if I receive such a letter?
At a minimum, you should contact a competent attorney and discuss the facts of your particular situation with him or her.Any facts you provide to the attorney in this discussion should be kept confidential.Once you have this discussion, you can decide whether to formally retain the attorney to represent or advise you in responding to the letter and any negotiations or lawsuit that may develop. Jonathan Z. Cohen can be reached either by calling (610) 293-8084 or via e-mail at jzcohen@davidconcannon.com. Disclaimer The materials and information on this web site are made available by The Law Office of David G. Concannon, LLC for informational purposes only and should not be considered legal advice. The transmission and receipt of information on the web site do not form or constitute an attorney-client relationship. The Law Office of David G. Concannon, LLC does not form an attorney-client relationship with anyone without an express written agreement signed by the firm and the client.Persons receiving the information on this web site should not act upon the information provided without seeking professional legal counsel.
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