The 5 Steps You Need to Take When You Receive an ISP Subpoena Letter
Copying music, movies, and software over the Internet using BitTorrent is now quite common. Sandvine recently published information on how much Internet traffic major applications used, and BitTorrent ranked as the number 1 upstream application, the number 4 downstream application, and the number 4 overall application behind Netflix, YouTube, and HTTP. What is worse is that many people do not even know that it is illegal to use BitTorrent or other filesharing programs to copy content. Given this background, it should come as no surprise that copyright holders have become increasingly aggressive about going after Internet file sharers.
While file sharing lawsuits started a number of years ago based on the sharing of music on services like Napster, Grokster, and LimeWire, the vast majority of mass copyright suits now focus on BitTorrent. Torrent lawsuits usually take the form of a copyright holder suing numerous "John Doe" or "Doe" defendants. The defendants are named as John Doe because the copyright holder only knows them by their individual IP addresses. However, once litigation has been initiated, the copyright holder can seek permission from the Court to issue subpoenas to the Internet Service Provider(s) of the various Doe Defendants in the case. The subpoenas to the ISPs will seek identifying and contact information for the Does in the case, including each Does' name and address, and usually telephone number and email address.
If you have received an ISP subpoena letter informing you that your information will be turned over to a mass copyright plaintiff in the near future, you and your family are likely under enormous stress. In addition, there is a lot of conflicting advice on the Internet - most of it posted by non-lawyers, or by attorneys who have handled few if any of these kinds of lawsuits. In addition, most of the online sources do not actually provide actionable advice. Below is an action plan that I recommend to clients, and hopefully it can help you resolve your copyright lawsuit.
1. Do Not Ignore the Subpoena Letter. Make no mistake about it - you have been accused of copyright infringement by copying content over the Internet, and the copyright holder has filed a lawsuit. This is not a laughing matter. There is a lot of bad advice on the Internet stating that you can just ignore an ISP subpoena letter. However, default judgments in excess of one million dollars ($1,000,000) have been granted in multiple file sharing lawsuits where Does chose to ignore ISP subpoena letters. Ignoring an ISP subpoena letter can literally ruin your life - don't do it.
2. Act Quickly. Take the ISP subpoena letter seriously, and get moving on it right away. With each case the key parameter of your action plan is whether you will fight the claim or settle. You will want to determine this before the date that your ISP turns your information over to the copyright holder. In particular, unless the copyright holder has been prohibited from listing you publicly, the copyright holder will be free to do so once it has your information, which gives the copyright holder additional leverage over you (especially if the content you are accused of copying is pornographic). Similarly, obtaining information about file sharers is expensive for copyright holders - it requires a successful subpoena. Once your name is "out there," it is far more likely that a second copyright holder will decide to pursue you.
3. Get the Facts. The first step in determining whether you want to fight the case or settle is to determine whether the accusations that have been leveled against you are true. Here is a checklist for your investigation:
General Background Questions
- Who are the computer users in your house?
- Of all the computer users, are any of them under the age of 18?
- Do you or anyone else in your household copy content over the Internet?
General Computer Questions
- What are the make and model of the computers in your house, including desktop computers, laptop computers, servers, smart televisions, gaming platforms, digital media players, including DVD players, Blu-Ray players, gaming consoles, hand held gaming devices, smart phones, and tablets.
- Is a BitTorrent client installed on any computer in the house? If so, which ones?
- Is anti-virus software installed on any computer in the house? If so, which ones?
- Who is your broadband Internet Service Provider?
- Who is your cable or satellite service provider?
- Who is your wireless service provider?
- Is your network entirely wired, or is there a wireless router?
Wireless Router Questions
- What different networks are setup for wireless access? For example, it is common to setup a "full access" network and a "guest" network.
- Does each network have a password or is it open?
- For each network with a password, who knows the password?
- Does the router maintain a network access log, and does it show any unexplained activity?
Based on your investigation, you should be assembling a picture as to what actually happened. Did you or someone in your household actually use BitTorrent to copy copyrighted content? If so, who did it? Is it possible that your computer was hacked? If so, do you have evidence that can support that?
4. Contact an Attorney. A skilled attorney can explain your options in far greater detail than a short article like this one. In addition, if you should choose to negotiate a deal, an attorney can arrange for your identity to be kept secret from the copyright plaintiff. Most importantly, a skilled attorney can offer guidance as to the right approach to take with your case.
Ideally, you will want to contact an attorney that (1) has handled a number of these suits, (2) is capable of litigating a case rather than just "negotiating a settlement" and (3) is admitted to practice in your state and in the particular United States District Court that you live in.
First, file sharing cases are, at their heart, steeped in copyright infringement. Most attorneys have never and will never handle a copyright infringement matter, and have no knowledge of the particular idiosyncrasies of copyright infringement claims. Accordingly, it is unlikely that an attorney who handled personal injury claim for someone you know is the right choice to handle this type of claim. The same is true for an attorney who handles DUI claims or divorces.
Second, many intellectual property attorneys who are familiar with copyright law rarely if ever actually litigate cases. Accordingly, they are not going to have a feel for the actual dynamics of your case, such as how experienced the other side's attorney is, how much a reasonable settlement is, etc.
Third, an attorney can only litigate a case in courts that s/he is admitted to. For example, copyright litigation attorneys at my firm are admitted to the United States District Court for the Northern District of Illinois, and the United States District Court for the Central District of Illinois. While most file sharing cases are resolved without major litigation, your case may well require major litigation - if your chosen attorney is not admitted into the Court that the case will be tried in, s/he will need to retain local counsel, which will only add to your expense.
5. Have your Attorney Seek a Demand. Once you know what the copyright plaintiff wants, you and your attorney can determine the best approach to take with your case. In particular, if the demand is low enough, consider paying it or having your attorney negotiate further. On the other hand, if the demand is high, your attorney can advise you whether you case can be won. You should know that litigating a copyright case be quite expensive. Many firms, such as my firm, offer ordinary families that are forced to litigate these claims advantageous terms so that they can fight a claim if need be. In addition, if you win your claim, the copyright plaintiff may be forced to pay your attorneys' fees.
If you have received an ISP subpoena letter, there is no doubt that you are under a lot of stress. Undoubtedly you want to resolve the situation as soon as possible. However, it is important to approach this decision carefully and unemotionally. I hope that the action plan I outlined can help you do that.