Digital Piracy – Protect Yourself Now

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I was recently interviewed by the Chicago Daily Law Bulletin, the “lawyer’s newspaper” printed in Chicago since 1854. Its the type of newspaper that older attorneys still read every day, delivered to their office, and contains the daily docket for state and federal courts in the Chicago metropolitan area.

But the subject was very “new school” – mass digital piracy, prompting thousands of federal copyright lawsuits alleging digital piracy of works, mainly films, using the massively popular BitTorrent file-sharing software. Unlike older file-sharing programs of a decade or more ago, these software programs break up the films into tiny digital “bits” that are shared among users in a kind of digital storm across the internet. Downloading an entire file from one central server is so 1999.

In a nutshell, the article discusses what happens when digital piracy results in thousands of federal copyright lawsuits. Film houses, or the entities that own the copyright to the films, hire mainly overseas firms who search out BitTorrent networks. It is an opaque business relationship that has come under suspicion. These overseas firms use computer systems to sniff out copyrighted film files being shared, and log the IP addresses of the users who are participating.  This information is shared with the copyright owner, who then files a lawsuit in federal court attaching a list of IP addresses it alleges participated in unauthorized file-sharing of its copyrighted work. The copyright owner, called the plaintiff, then asks the court for “early discovery”. Specifically, the plaintiff asks for permission to subpoena the ISP company for each IP address in the list, in order to reveal the name of the ISP subscriber who pays the bill for the account associated with that IP address.

The problem, though, is that the people paying the internet bill often have no idea that a friend, family member, or neighbor has used WiFi to access their internet account to illegally download the copyrighted film. Or, worse yet, there are people who routinely “spoof” IP addresses, meaning they mask their true IP address with a fake IP address that is located nowhere near to them. Its just too bad that made-up IP address matches the IP address assigned to you. Once that federal copyright lawsuit is filed, you have now became an alleged copyright infringer, or in popular parlance a digital “pirate”. The consequences of merely being accused of being a copyright infringer are steep.

Now, whether you actually did download the movie or not, really doesn’t matter. It is probably going to cost you money. Receiving that letter from your ISP means you suddenly have to make some choices, most of which will cost you thousands of dollars. The letter tells you that there is an opportunity to fight that subpoena, a process called quashing. File a motion to quash the subpoena and fight the lawsuit? Probably $5,000 up to around $50,000 – assuming you win. And what if you fight and lose? The US Copyright Act provides for statutory damages that range from $750 to $150,000 per download. If you fight the lawsuit and lose, once you add in attorneys fees just one illegal download can be punished for about the price of the average American home.

In addition, many times the subject matter of the film being allegedly downloaded is itself a problem. The ISP letter may inform you that your IP address is being accused of downloading stolen pornography and the ISP has received a subpoena from the plaintiff commanding it to reveal your name so an amended lawsuit can be filed, now using your name in a public lawsuit.  If being accused of being a digital pirate by violating the US Copyright Act isn’t enough, you are now being accused of stealing porn from the internet. How’s that going to sound at work?

But you have an out. And unfortunately only for a limited time: Pay a lawyer like me to settle the case anonymously before your name is released by the ISP, before the plaintiff has a chance to amend the complaint from a defendant “John Doe” with a certain IP address, to a Mr./Mrs. Jane Smith of Chicago, Illinois. What is the cost to settle, whether you are in fact guilty or actually innocent? Around $3,000 to $4,500 including paying your lawyer. That is unless you are accused by Malibu Media LLC which produces literally hundreds of copyrighted pornography films. If that is the case, you may be talking tens of thousands of dollars. But comparing this to fighting the lawsuit, and looking at the prospects of what it may cost, win or lose, many people decide to settle anonymously. Even when they did not do it.

I wrote about many of these problems in my 2013 Torrent Wars article published by the Illinois State Bar Association. But what I encounter most often that bothers me is what I began this article with: the innocent parent with the ISP letter sitting in their lap. Whether it was their child, roommate, friend, neighbor, or overseas   IP “spoofer” who downloaded the copyrighted film, it is very unfair to them. In the Chicago Daily Law Bulletin I said: “People who create ought to be protected and paid, and piracy is a legitimate issue…  But there is a large (question) of fairness when it comes to these innocent parties where a parent has a subpoena sitting on their laps and are asking ‘What am I going to do with it?’”

Right now, you haven’t been accused of illegally downloading anything. You have a chance at protecting yourself. Make sure your children and all others who use your household internet do not illegally download any copyrighted files. Password protect your wifi, and don’t use PopcornTime, BitTorrent, uTorrent, or any other software to download copyrighted materials.

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