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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 released information on how much Internet traffic was used by top apps, and BitTorrent ranked as the #1 upstream app, #4 downstream app, and #4 overall behind Netflix, YouTube, and HTTP. Worse, many people don’t even know that it’s illegal to use BitTorrent or other file sharing programs to copy content. Given these facts, it should come as no surprise that copyright holders are becoming increasingly aggressive in their pursuit of Internet file sharers.
While file sharing lawsuits began many years ago based on music sharing services such as Napster, Grokster, and LimeWire, the vast majority of copyright infringement class actions now focus on BitTorrent. Torrent lawsuits usually take the form of a copyright holder suing multiple “John Doe” or “Doe” defendants. The defendants are named John Doe because the copyright holder knows them only by their individual IP addresses. However, once a lawsuit is filed, the copyright holder can ask the court for permission to issue subpoenas to the internet service provider(s) of the various Doe defendants in the case. Subpoenas to ISPs will require identification and contact information for the data subjects in the case, including each volunteer’s name and address, and usually a phone number and email address.
If you’ve received a subpoena from your ISP informing you that your information will be turned over to a copyright class action lawsuit in the near future, you and your family are probably under a lot of stress. Additionally, there is a lot of conflicting advice on the Internet – most of it posted by non-lawyers or lawyers who have had little, if any, experience with this type of litigation. Plus, most online resources don’t actually provide helpful advice. Below is the action plan I recommend to clients and hopefully it will help you resolve your copyright infringement dispute.
1. Don’t ignore the summons letter. Make no mistake – you have been accused of copyright infringement by copying content over the Internet and the copyright holder has filed a lawsuit. Its not funny. There is a lot of bad advice on the internet that says you can ignore ISP subpoenas. However, default judgments in excess of one million dollars ($1,000,000) have been awarded in several file-sharing lawsuits where Does chose to ignore ISP subpoena letters. Ignoring ISP subpoenas can literally ruin your life – don’t do it.
2. Act quickly. Take your ISP summons seriously and act immediately. In any case, whether you will fight or settle the claim is a key parameter of your action plan. You’ll want to find out before the date your ISP hands over your information to the copyright holder. In particular, unless the copyright holder has been banned from featuring you publicly, the copyright holder will be able to do so once they have your data, giving 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—requiring a successful subpoena. Once your name is “out there”, it’s much more likely that the other copyright holder will decide to pursue you.
3. Get the facts. The first step in deciding whether to fight or settle a case is to determine whether the allegations against you are true. Here is a checklist for your investigation:
General background questions
- Who are the computer users in your home?
- Are any of the computer users under the age of 18?
- Do you or someone else in your household copy content over the Internet?
General computer questions
- What are the makes and models of computers in your home, including desktop computers, laptops, servers, smart TVs, gaming platforms, digital media players including DVD players, Blu-Ray players, game consoles, handheld game devices, smartphones and tablets.
- Is there a BitTorrent client installed on any computer in the house? If so, which ones?
- Is antivirus 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 fully wired or do you have a wireless router?
Wireless router questions
- What different networks are set up for wireless access? For example, it is common to set up a “full access” network and a “guest” network.
- Does each network have a password or is it open?
- Who knows the password for every password network?
- Does the router keep a network access log and show any unexplained activity?
Based on your investigation, you should build a picture of what actually happened. Have you or someone in your household really used BitTorrent to copy copyrighted content? If so, who did it? Is it possible that your computer has been hacked? If so, do you have evidence to support this?
4. Contact a lawyer. An experienced attorney can explain your options in much more detail than a short article like this. Additionally, should you choose to negotiate a settlement, an attorney can ensure that your identity is kept confidential from a copyright claimant. Most importantly, an experienced attorney can offer advice on the right approach to your case.
Ideally, you will want to contact an attorney who (1) has handled a number of these lawsuits, (2) is capable of litigating rather than just “negotiating a settlement,” and (3) is admitted to practice in your state and in a particular United States District Court. in which you live.
First, file sharing cases are inherently fraught with copyright infringement. Most lawyers have never, and never will, handle a copyright infringement matter and have no knowledge of the special features of copyright infringement claims. Accordingly, an attorney who has handled a personal injury claim for someone you know is unlikely to be the right choice to handle this type of claim. The same goes for an attorney who handles DUI claims or divorces.
Second, many intellectual property lawyers who are familiar with copyright law rarely, if ever, litigate. Accordingly, they won’t have a feel for the actual dynamics of your case, such as how experienced the other side’s attorney is, how reasonable the settlement is, etc.
Thirdly, a lawyer can only litigate in courts to which he is admitted. For example, my firm’s copyright litigation attorneys 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 settle without major litigation, your case may require major litigation—if your chosen attorney is not admitted to the court hearing the case, he or she will have to retain a local attorney to add to their costs.
5. Ask your lawyer to look up the demand. Once you know what the copyright plaintiff wants, you and your attorney can determine the best approach for your case. Especially if the demand is low enough, consider paying it or let your attorney negotiate further. On the other hand, if demand is high, your attorney can advise you on whether your case can be won. You should know that copyright litigation is quite expensive. Many firms, such as mine, offer ordinary families who are forced to litigate these claims favorable terms so that they can fight the claim if necessary. In addition, if you win your claim, the copyright plaintiff may be forced to pay your attorney’s fees.
If you have received a subpoena from your ISP, there is no doubt that you are under a lot of stress. You undoubtedly want to resolve the situation as soon as possible. However, it is important to approach this decision carefully and without emotion. I hope that the action plan I have outlined can help you with this.
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