A Second Primer: Subpoena Defense 201
Hopefully, you have already read the basic primer outlining some basic information on copyright troll lawsuits.
Some so-called copyright trolls may not be willing to settle upfront for nuisance value. In some subpoena defense lawsuits we have seen complaints alleging infringement of multiple copyrights. Generally, the complaint alleges that the John Does downloaded not a single move, but rather an archive file consisting of multiple movies.
These multiple copyright cases may not go away so easily, because, due to the way statutory damages work in copyright cases, more copyrights at issue means higher potential liability. So defendants in multiple copyright cases are higher dollar value targets, which means the plaintiffs may be more willing to pick some people out to try and make examples out of.
In other Malibu Media and Patrick Collins lawsuits, even though the complaint alleges infringement of a single copyrights, attempts to settle have been met with assertions (dubious? tough to say) from the plaintiffs that additional infringements were supposedly logged at later dates and times.
Thus, some cases may not settle for $2-5K.
The Three Phases of Subpoena Defense Lawsuit
FIRST PHASE – ISP LETTER
Ideally, The Pietz Law Firm likes to get involved right at the beginning, after you have received a letter from your ISP and before the deadline to respond. The first goal the Firm tries to accomplish is to keep the plaintiff from ever receiving your contact information. Depending on the circumstances, there are different ways to try and do this. However, there are no guarantees in litigation. If the Judge orders the ISP to turn over subscriber info (i.e., your info) to the plaintiff, or perhaps you missed your initial deadline to file a motion to quash and sever, then things go to. . .
SECOND PHASE – PLAINTIFF GETS YOUR INFO AND THREATENS TO “NAME” YOU IN COMPLAINT
Once the plaintiff gets your information from the ISP, the plaintiff is in the driver seat as to what to do with it. Generally, the plaintiff sends a letter, calls, or emails with a threat that unless you pay up, it will “name” you in a federal complaint accusing you of illegally downloading pornography. This is really the heart of these cases: leveraging the stigma associated with pornography to try and obtain a settlement. Once the plaintiff has your info, it is up to the plaintiff whether it is going to drag your name through the mud, so this is why it is good to try and stop the case at the first phase.
Once the plaintiff actually names you (which means it files an amended complaint replacing “John Doe No. [X]” with your actual name), traces of the lawsuit can be hard to erase. People who search your name on the Internet may find search results related to the case, which will exist on the publicly-accessible federal court docketing system called PACER, as well as perhaps in other places on the web. At this stage, what you can do is ask the Court to enter a protective that your name be kept under seal, meaning that while the plaintiff knows your name, and the Court knows your name, it will not be disclosed to the public, at least not initially.
Most of the time, this is an empty threat: what the plaintiff is really going to do is dismiss the case against you without prejudice at or near the service deadline. (Without prejudice means that the plaintiff can technically re-file the lawsuit up until the statute of limitations expires, which is usually after 3 years for copyright infringement).
However, on occasion, plaintiffs will pick out an unlucky few people that it actually names in a lawsuit, in which case the next phase becomes. . .
THIRD PHASE – “SERVICE” OF THE COMPLAINT
Once the plaintiff has formally served you with the complaint, which means it formally gives you a copy of the complaint and summons, then you are officially involved in a real case that you should take very seriously. If you fail to file a responsive pleading, usually an Answer or a motion to dismiss, within a certain time, you risk what is called a default judgment. Generally, liability on a default judgment has ranged from $750 to $6,000 per copyright, plus possible attorneys fees and costs. Technically though, if you were found guilty of “willful” infringement, the maximum limit would be $150,000 per copyright.
One thing to bear in mind is that if you are not actually the person who downloaded the movie and have some kind of proof of that fact, and the plaintiff takes the case this far, then the plaintiff makes itself potentially liable on a counter-claim which you can file against it.
To date, there have been very few defendants actually served with a lawsuit by the copyright trolls. However, it does happen. With respect to those defendants who are served, in most of those cases, the plaintiff tried to obtain a default judgment, and, failing that, the plaintiff often abandons ship and dismisses the lawsuit.
The Bottom Line
If a plaintiff actually goes so far as to name and serve you with a complaint, you should take the case seriously and think carefully about what you want to do about it. The Pietz Law Firm can absolutely defend you if this happens; there are a lot of problems with most of these cases, and the burden is on the plaintiff to prove each of its claims. However, even if you have a strong defense, you should understand that defending a lawsuit can get pretty expensive quickly. Then again, when the plaintiff starts out the lawsuit by asking for a five digit settlement, fighting the case may be the best option.
Again, this is intended as general information only; you should not rely on this as legal advice. Your situation could be different, and, if in doubt, you should consult with an attorney. Give the The Pietz Law Firm a call if you want to discuss. Check out the other material on this site if you have a subpoena defense case or want more information on a Malibu Media lawsuit.