Let's say it right up front: some large percentage of those targeted in the recent wave of P2P movie lawsuits are no doubt liable for their piratical behavior. But those who "didn't do it" face an agonizing choice—pay $1,500 to $2,500 to settle the lawsuits brought by Dunlap, Grubb, & Weaver, or pay even more money for a lawyer to plead one's innocence.
And innocent or not, a case that goes to court always runs the risk of ending in a $150,000 fine. The sheer size of the penalties for online infringement would give anyone pause, and we've heard recently from several of those currently wrestling with what to do.
All claim innocence, much like the woman we profiled two weeks back, and we cannot evaluate the truth of any particular claim. But if you want to know just who these 14,000 P2P lawsuits have snared so far, here are several glimpses of how a lawsuit can affect a life.
"A good citizen should fight it"
Imagine that you're on the receiving end of a settlement letter. You've never heard of the film mentioned. You have only a hazy notion about BitTorrent. How do you react?
"It disrupted my work and life for several days," said one father who contacted me after receiving a Far Cry settlement letter. "I talked to many people about this and overwhelming reaction was that this is a scam. Just a few said that maybe it will be less headache if I will pay $1,500. One said that a good citizen should fight it, not pay...
"I asked everybody [in my family], and everybody said 'I did not download it.' I do not have little kids who will just get scared, hide in the closet, and deny everything. Such conversations went on for a number of days. We talked about risks and potential cost of the lawsuit, and if there is a slight chance that one of us shared that movie, it will be cheaper to pay the settlement."
But he decided not to pay.
"After all these talks I cannot just say, 'You are all liars, I do not trust you and I will just pay $1,500.' I decided that the trust in our family is more important than the money and headache of the lawsuit, I feel I am doing [the] right thing."
He searched for files named "Far Cry" on his PC but found nothing. But an Internet connection is tough to lock down completely—friends come over, relatives stay the night, a neighbor might leech WiFi.
"So I cannot be 100 percent sure that there was no BitTorrent traffic from my IP," he concluded. "The best I can do is to trust what my family says: nobody ever downloaded this film. Even if file has ever passed through my router, nobody in my family knowingly gave command or authorization to do it, and this is the best I can tell."
He then raised an unpleasant scenario: the prospect of "Internet insurance" that would pay out if a connection is used for anything illegal.
"I also realized that since I cannot fully control computers, and IF I am legally responsible for all the traffic through my router, then I should cancel my home internet access, it's too risky. Or since risk can be addressed by an insurance, I already see internet liability insurance that covers such lawsuits."
"Paycheck by paycheck"
Another reader e-mailed in frustration to say that he had until June 15 to settle for allegedly sharing the film Far Cry (according to the settlement letter he received), but that he still didn't know what to do. Settling would be a huge financial hardship, but hiring a lawyer to help fight the claim would likely cost more.
"Originally we got a letter from our ISP stating they have a subpoena for our name and address. We literally had 2 business days to research and try to find legal counsel on this matter. I called a local ISP lawyer here in [state redacted]. His advice was to contact a lawyer over where this lawsuit originated (Washington, DC). Well, we do not have the monetary means or time to try and fight this...
"I am disabled and along with my wife, we live with my parents. My father is also disabled. So there is only two incomes coming in for our family and as you know the standard of living in [state redacted] is bad enough. We live paycheck by paycheck, so to speak."
"A movie I never heard of"
A tech-savvy reader e-mailed in outrage over being subpoenaed in the Far Cry case.
"Here is a quick overview of my situation; I received a subpoena notice from [ISP redacted] on May 4, with a deadline of May 7 for response. It included NO INFORMATION as to what the subpoena was about so I immediately tried to contact the sender of the notice. After countless e-mails & phone calls, I finally reached an informed, live person by calling [ISP's] corporate line (which I found online and was NOT included in the notice).
"I was finally provided a copy of the subpoena itself and I recognized the date that I was accused of downloading Far Cry (a movie I never heard of) as a period when I was having internet connection and wireless router issues. I suspect my neighbors may have been using my connection without my permission and my ISP should have record of my support calls...
"Unfortunately, I tried to hire an attorney that could help me with this and I was repeatedly told there was little I could do without further information from [ISP], and certainly nothing I could do in the very short period before the subpoena deadline. I did all this in the span of only a few days and STILL DIDN’T GET ANYWHERE. I assume my identity has been sent to the plaintiff and I can only imagine what others are going through trying to figure out what is going on here."
"Way above our abilities to deal with"
Other readers took the situation into their own hands, writing letters to the DC District Court that look nothing like actual legal briefs. But the federal judges overseeing the cases generally allow even the worst hand-scrawled into the record and rule on them as a "Motion to Quash" the subpoenas already issued.
Some of these personal notes, stripped as they are of the bloodless legal language of the courts, let people's humanity show through. On June 1, for instance, the court accepted a letter written by one William Wright of Oregon. Wright was objecting to the release of his information in the subpoena process, but in doing so sent a letter containing his name, his address, his e-mail address, his phone number, and his signature.
As the lawyers for Dunlap, Grubb, and Weaver would point out to the court a few days later, "Mr. Wright’s motion actually divulges the very information sought by Plaintiff through the subpoena - his name and address as an alleged infringer, along with his IP address - thereby undermining any argument that this information is privileged. Had Mr. Wright truly deemed this information to be privileged, he could have provided it to the court and requested it be sealed, and he would have redacted the information from the documents filed in the public record in this case. However, Mr. Wright did not do that and basically has mooted his own motion to quash."
One suspects that, despite the letter's implication that this should have been obvious to anyone, Wright had no knowledge of court procedures, of sealing and redaction. In any event, the two-paragraph note is touching but likely doomed to failure.
"My wife and I are both 69 years of age and the only occupants of this location," wrote Wright. "Charter personnel installed the high speed equipment for our internet connection and we have made no modifications to it. If it had any features that made it vulnerable to 'hacking,' we had no knowledge of that. The technology is way above our abilities to deal with."
But these are substantive issues of the facts in the case; they aren't properly dealt with in a motion to quash, and the judge lacks any evidence upon which to assess such a claim. As the plaintiff's lawyers note, "The merits of the case, or Mr. Wright’s defenses, are not at issue at this stage of the case."
True enough, but letters like Wright's are now sprinkled throughout the various P2P dockets in the DC District Court. Through what they leave out, such letters make a single eloquent case: the authors don't know the law, and they don't have the resources to hire a lawyer to deal with some court case 3,000 miles away.
Another such letter insists that John Doe #4 "has no knowledge of any such downloading of a copy of the film The Gray Man. The Defendant, John Doe also contends he does not have any understanding of the process of downloading this film and therefore is unaware of any 'torrent' infringement as stated in the plaintiffs [sic] motion."
And then there's this, from yet another letter to the court: "At no time was my computer used to download neither [sic] the item in question nor any other unlawful download. My computer IP address and MAC codes were not used for such actions and they do not match those provided. Beyond this I do not have internet access through Charter."
Judges to the rescue?
Such motions have been routinely denied so far this year, but for those who feel "shaken down" by the process and believe in their own innocence, some (free) relief might in fact be coming soon.
Federal judges haven't been too keen to see P2P cases resolved this way. Remember, only two cases in the RIAA legal campaign proceeded all the way to trial and verdict. In the first, Judge Michael Davis has twice ruled in favor of the defendant after juries found her liable. First, he granted her a complete retrial, and when that concluded, slashed the jury damage award from $1.92 million to $54,000.
He noted the difference between what Jammie Thomas-Rasset did and the commercial infringement the statutory damage laws were written to stop. "In the case of individuals who infringe by using peer‐to‐peer networks, the potential gain from infringement is access to free music, not the possibility of hundreds of thousands—or even millions—of dollars in profits," he wrote. "The need for deterrence cannot justify a $2 million verdict for stealing and illegally distributing 24 songs for the sole purpose of obtaining free music."
In the second case, that of Joel Tenenbaum in Massachusetts, Judge Nancy Gertner went even further in trashing the RIAA legal campaign.
"I've said this before in open court," she said. "There is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources. The law is also overwhelmingly on their side. They bring cases against individuals, individuals who don't have lawyers and don't have access to lawyers and who don't understand their legal rights. Some category of individuals are defaulted because they read the summons, and they haven't the foggiest idea what it means and don't know where to go, so they're defaulted, and they owe money anywhere from $3,000 to $10,000 as a result of these defaults...
"I can't say this is a situation that is a good situation or a fair situation. It is, however, the situation."
In two of the cases brought by Dunlap, Grubb, & Weaver, Judge Rosemary Collyer has just given the lawyers two weeks to convince her that the lawsuit shouldn't be broken up into individual cases, with all but one defendant "dismissed for misjoinder."
Federal judges, if they believe that the process has become abusive, may well intervene in the interests of fairness; Gernter even helped Tenenbaum find free legal representation in Harvard Law professor Charles Nesson.
Note, though, that Davis and Gertner both allowed the cases to proceed and both oversaw "liable" verdicts. Those who claim innocence need more than faith in the federal judiciary; they need a backup plan should these cases proceed to trial.
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