This is a nonexclusive list of initial legal options for defendants and potential defendants in file-sharing lawsuits. The article is directed towards individuals who have receive a notice from their ISP (Internet Service Provider) that information associated with that individual’s IP address is being subpoenaed in a file-sharing lawsuit. Receiving a notice like this is never a fun experience. The prospect of defending a lawsuit in a far-away court is upsetting and stressful for anyone. Most ISP subpoena notices give 30 days from the notioce date before releasing a customer’s personal information. During that time, several options are available to the would-be defendant:
NOTE: THIS ARTICLE IS FOR INFORMATION PURPOSES ONLY AND IS NOT TO BE CONSTRUED AS LEGAL ADVICE. EVERYONE’S SITUATION IS DIFFERENT. THOSE ACCUSED OF FILE SHARING SHOULD CONSULT WITH A LICENSED ATTORNEY IN THEIR AREA TO DETERMINE THE BEST LEGAL OPTION FOR THEIR SITUATION.
Option 1: Do Nothing / The “So Sue Me” Approach
Your ISP usually has 30 days after notifying you of the subpoena before they have to turn over your information to the plaintiffs. If you do nothing, your information will be turned over and the plaintiffs will have the discretion to decide whether they want to actually name you in a lawsuit. Remember, simply because your IP address has been subpoenaed in a lawsuit doesn’t necessarily mean that you have actually been sued. For “John Doe” lawsuit like this, the plaintiff must withdraw the Doe claim and refile against named defendants.
The “So Sue Me” approach dares the plaintiff to sue you after getting your information, which they very well might. The only upside I can see to this approach is that maybe, when it comes time to actually name and serve you in the lawsuit, the plaintiff has either recovered enough money from settlements or has given up entirely on the case for one reason or another. The former seems more likely than the latter but it is always a possibility.
Option 2: File a Motion to Quash the Subpoena
An initial option being mentioned a lot is the option to file a motion to quash the subpoena. If successful, a motion to quash would remove your ISP’s obligation to release your personal information to the plaintiff. A motion to quash was successfully filed in a file-sharing case but that motion was filed by an ISP who prevailed on grounds that the subpoena was improperly issued. For individuals however, prevailing on a motion to quash (“MtQ”) is not as easy as we’d all like it to be.
The first obstacle is getting the motion filed without giving up your personal information. Filing a motion in court saying “don’t give my name and address to the plaintiff” creates a Catch 22 scenario whereby the plaintiff gets what they were after in the first place. In order to proceed on an MtQ anonymously, the moving party must show that their privacy interest outweighs the right of openness in judicial proceedings. Privacy interests are much higher in cases involving “sensitive issues” such as abortion, sexuality etc. An accusation of file sharing isn’t nearly as sensitive as Roe v. Wade.
Because the second obstacle is the Court’s general desire to let cases be resolved on the merits rather than blocking access to information, I remain pessimistic about individuals’ likelihood of success in filing Motions to Quash.
Option 3: File a Motion to Dismiss (e.g. for lack of Personal Jurisdiction)
Although receiving a notice of subpoena from your ISP doesn’t mean you have been officially named in the lawsuit yet, many potential defendants have taken a proactive approach by identifying themselves and moving to dismiss the lawsuit for lack of personal jurisdiction.
In order for a court to hear a lawsuit, it must have jurisdictional over the parties. Personal jurisdiction is a waivable requirement and any defendant to a lawsuit can appear generally in the case and respond to the accusations against them. For a motion to dismiss for lack of personal jurisdiction (“MtD”), the defendant doesn’t actually “appear” in the case and subject themselves to jurisdiction. Instead, the defendant says “get me outta here because the court doesn’t have jurisdiction over me.”
This option is generally available to defendants who have no connection to the state where the court and lawsuit are located, the “forum state.” Very generally (and not always so), defendants who own no real property, don’t conduct business or otherwise have any regular contact with the forum state aren’t subject to its jurisdiction. A question remains whether being in a torrent swarm with individuals located in the forum state subjects everyone on that swarm to personal jurisdiction but I find it unlikely.
For those that want to fight at this early stage, I see filing a motion to dismiss as a strong option.
A BIG caveat with this option is, even if successful, the plaintiff still has the option to re-file the lawsuit in a forum state that does have personal jurisdiction over you, such as the state where you live.
Option 4: Settle with the Plaintiff
Most lawsuits are settled out of court, in part due to the rising cost of legal representation during litigation and the time commitment of a full-blown trial. Most settlements dispense with the matter in all jurisdictions, not just the one where the present lawsuit is filed. If you do settle, make sure the settlement documents reflect that understanding. Whether settling at this early stage of litigation (before your ISP has released your information to the plaintiff) is in your best interest ultimately depends on economic considerations and your true liability.
If you didn’t download a film over bittorrent, you are willing to make such a declaration under oath, and if you are quite certain the alleged file or record of that file appears nowhere on your hard drive (a computer forensics analyst would likely need to inspect your computer during trial discovery), I think settling to avoid a potential lawsuit down the road is a mistake because it isn’t justice. IMHO, plaintiffs shouldn’t be able to win a lawsuit simply because the defendant can’t afford to defend him/herself, but such is the current state of our legal system. Although there are some circumstances where a defendant can recover attorney’s fees from the plaintiff for pursuing unjustified lawsuits, such an outcome is not guaranteed.
On the other hand, if you did download the movie in question, you know you did it, you have/had the file/torrent on your hard drive, then settling could be your best option. Willful infringers of registered copyrighted works can be ordered to pay up to $150,000 in damages per infringement. I have personally never seen a judgment against an individual for $150K but in any event, even the lowest 5-figure damage award is not cheap. For “red-handed” defendants, settling could be an easy out.
AGAIN, THIS IS FOR INFORMATION PURPOSES ONLY AND IS NOT LEGAL ADVICE. CONSULT AN ATTORNEY IN YOUR AREA TO DETERMINE THE BEST OPTION FOR YOUR SITUATION.