A Thoroughly Modern History

Over the past year, this question has become uncomfortably common among home network service subscribers in the United States and United Kingdom. (See: http://arstechnica.com/tech-policy/news/2010/10/us-anti-p2p-law-firms-sue-more-in-2010-than-riaa-ever-did.ars) With this guide I will attempt to answer some of the most common questions concerning mass tort copyright infringement litigation and examine some of what I believe to be the best practices for your defense.


Do Not Contact the Plaintiff's Attorney(s)

No matter what the letter from your ISP tells you, it is NEVER a good idea to contact the Plaintiff's attorneys. Generally speaking, at the stage in which you have been informed about the pendency of a suit in which your identifying information has been sought, such information has yet to be turned over to Plaintiff's attorneys, and there is no reason why you should be doing their work for them. Such contact may result in Plaintiff's counsel gaining other valuable information about your case and may cause substantial disadvantages should you later attempt to hire an attorney to represent you or even attempt to settle the claims on your own.


Determine the Validity of the Claim

In order to effectively evaluate your defense options, it is important to speak frankly with other users who may have had access to your network at the time of the alleged infringement. Depending on the nature of the work alleged to have been infringed, this could be an uncomfortable conversation, and I would urge you to prepare for it accordingly. You will also need to take note of your network security settings. If you are not comfortable doing so, you may wish to contact the service provider or individual who initially installed your network service for more information and to assess/repair any vulnerabilities. At this point, though it is a good idea to make sure that you're running anti-malware/antivirus programs regularly, UNDER NO CIRCUMSTANCES SHOULD YOU DESTROY, REFORMAT, OR REMOVE RELEVANT DATA FROM YOUR COMPUTER SYSTEMS. You are under an obligation to preserve this information, and its removal may disadvantage your defense should the matter proceed to litigation.


Hire Your Own Attorney

In a substantial portion of these cases the original action is filed somewhere other than the state in which you live. This creates a problem of jurisdiction wherein the Plaintiff may be unable to maintain an action against you in the state of the original filing. Similarly, for attorneys in your home state, this may also present a problem of appropriate licensure and admittance to practice in the jurisdiction and court in which the suit has been filed. My suggestion is to use the Avvo's "Find a Lawyer" and/or the Electronic Frontier Foundation's resources page (http://www.eff.org/issues/file-sharing/subpoena-defense) to locate experienced IP/Internet attorneys both in your area AND in the jurisdiction in which your suit has been filed, and to then evaluate the services that each might be able to provide toward your defense. Though you may find it helpful, it is not necessary to retain an attorney in your state to represent you.


Follow Your Attorney's Advice

Decisions concerning your defense are best left to you and your attorney. Only he/she will be able to evaluate the relevant facts to implement an effective defense on your behalf, and I would strongly urge you to trust their professional judgment. Given the breadth of these lawsuits, I can confidently say that there is a great volume of misinformation published concerning the availability/successes of any particular legal strategy, and while it does no harm to discuss such options with your attorney, he/she truly holds your best interest at heart, and you would be wise follow his/her advice.