Legal Options for File-Sharing Defendants

Voltage Pictures / Hurt Locker subpoena

Voltage Pictures / Hurt Locker subpoena

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:


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.


This entry was posted in Articles & Resources, File Sharing Defense, News and tagged , , , . Bookmark the permalink.
  • Pingback: Anatomy of a File Sharing Lawsuit | Stewart Kellar - E-ttorney at Law

  • Elizabeth & Victor Wikstrom

    Neither my husband nor I downloaded anything. A family member was living with us at the time that The Steam Experiment was allegedly downloaded. We have not been able to get in touch with him to find out if he really did download this movie or not. We are not sure what to do but do not want to settle since we are definitely not guilty.

  • James Carey

    I am not an attorney. However, what would happen if when the court finds against someone were they to…

    Argue that, to recover, the plantifs have to proove the amount or value of their actual loss. Point out that, if the plantifs represent are wholesalers, the loss per item can not exceed the wholesale price of the item and; if the plantifs are retailers, the loss per item can not exceed the retail price of the item. This would put the value of the time into perspective for the court.

    Next, challenge the amount of loss by arguing that were the accused to have seeded to 100 peers and each peer uploaded to was also sharing the file. Therefore, each peer who recieved 1 copy of the file is equally responsible for the total loss of 100 copies of the the file. As each peer is responsible for an equal portion of that 100 copies or, 1/100 copies of the file…. one copy!

    Impress upon the court that the plantif is seeking damages far outweight the the total value of the products alleged to have been ‘stolen’. State that, if the plantif wishes to, they alway have the option to recover an equal share total loss from the other potential defendants.

    Argue that the plantif must proove the total amount loss the defendant is responsible for. Was it the difference between the number of seeders the moment the accused began seeding and the number of seeders when the accused ceased seeding the file? Was it the total number of seeders at the time the defendant stopped seeding the file? Argue that, since making availble is not in the law, peers do not count as, at the time the accused ceased seeding the file, peers did not have a copy of the file.

    Find out what the maximum fine would be in a criminal case and then point the penality in a civil case should not exceed that which the government would be entitled to impose, that amount using being restitution of the value of the item loss plus a fine. Argue that the financial maximum allowed under criminal law, at most, should be the standard for recovery of damages.


    * 1 item shared to new 100 seeders
    * Each seeder responsible for 100 copies
    * Each seeder equally responsible the a share of the total number of seeds or, 1/t where t is the total number of copies. That’s 1/t or 1 copy.
    * Value should not exceed the amount allowed by crimal law which is the value of the item or, 1/t or, 1 the value of one copy.
    * Damanges in civil law are the same as effectively the same as fines in crimal law. As such, per the US Constitution, they can not be excessive.
    * Damages should not be more than that allowed for a theft of the same item under criminal law in the state of original jurisdiction.