Sued in a BitTorrent Copyright Infringement Lawsuit? What’s in a Settlement Agreement?
I’ve been a litigation attorney for nearly 17 years starting out in a Chicago law firm defending tort claims, and later moving on to other law firms including one defending doctors, until I eventually started my own 10 years ago suing and defending technology companies. Today I want to discuss what is commonly found in a settlement agreement.
How many cases have I personally litigated including trials, arbitrations, appeals, and mediations? I’ve lost count. Definitely many hundreds, perhaps over a thousand.
No matter what kind of case it was, or how long or how short the litigation lasted, almost every single one resulted in the parties entering into a negotiated settlement agreement.
Why? Because it was in the interest of both parties to settle and put the past behind them. I hope this article will explain the common parts of a settlement agreement, and dispel some myths that may be found on the internet.
So What Is a Settlement Agreement?
I nearly every case I have litigated in court, eventually the case was settled. That is, unless one party prevailed after years of going to court and sometimes even going through an appeal. But “going all the way” is very, very rare.
Court cases going all the way to a final trial and judgment is so rare – in fact, less than 1% of all cases filed in court go that far – that our newest United State Supreme Court Justice, Neil Gorsuch, has come up with a plan to have more civil case go to jury trial.
So for most civil cases – whether they are for breach of contract, personal injury, divorce, copyright infringement, or something else – eventually the case settles.
To reach that settlement, both sides negotiate an agreement in writing. Why in writing? They put it in writing to sure that each side clearly understands what they and the other side is agreeing to. After all, if the settlement includes an exchange of money, nobody wants to realize there was a misunderstanding once the money was paid.
And, if there is a dispute later, each side wants to be able to prove to a court just what that agreement really was. When that agreement is put in writing, the writing is called a “settlement agreement.”
Almost Every Settlement Agreement That Has Ever Been Agreed To Included Two Things:
- No admission of guilt
- Confidentiality of the terms of the settlement
What Am I Getting in a Settlement Agreement?
If you enter into a settlement agreement in order to get both sides to sign it, each side is getting one or more of the following:
- Not having to admit guilt, if you are a defendant
- Money, if the other side is paying you as part of the settlement
- Avoiding the risk of losing really badly at the end of the case if taken “all the way.”
- Being able to stop paying your lawyer’s bills every month
- Peace of mind. Its over, You don’t need to think about the case anymore or keep going to court.
Cases settle. That’s the real world of lawsuits and the courts, whether it is a civil case involving money or a criminal case involving possibly going to jail.
What Am I Giving Up in a Settlement Agreement?
In order to get to a settlement agreement, each side is also giving up something.
Typically, one side or the other is giving up on or more the following:
- The ability to try to make the other side “suffer” by keeping the case going (just think of a divorce case)
- The chance to try to get a court to let you win everything you asked for in the lawsuit complaint, if you are the plaintiff
- The chance to “vindicate” yourself as the innocent party, if you are the defendant
- Money, having to pay the other side as part of the settlement
- Talking about the settlement agreement’s amount or terms. In other words, the terms of the settlement agreement are confidential.
I’ve Heard That My Type of Case Was Settled Differently by Another Lawyer – Is That True?
Maybe. But Probably Not.
Why not? The reason is because most settlement agreements contain confidentiality clauses. This article from the American Bar Association explains why nearly all settlement agreements have a confidentiality clause. It is a necessity.
In my opinion, plaintiffs (the ones who filed lawsuits) including the movie companies suing for alleged illegal movie downloads want to allow confidentiality clauses in order induce the defendant to settle and pay them money, rather than dragging the case on to clear their name. From the American Bar Association article:
“Not being able to agree on a confidentiality clause may force defendants to vigorously defend themselves to clear or keep clean their good name.”
For example, here is a confidentiality clause from one of the nearly 2,000 BitTorrent copyright infringement cases Antonelli Law has handled across the country:
Also from the same American Bar Association article:
“Because only a small portion of the facts are included in settlement agreements, failing to keep settlement agreements confidential also leads other, potential litigants to form unreasonable expectations” (Bold added).
Do I Admit Guilt in My Settlement Agreement If I Am a Defendant?
Almost certainly not.
Why not? The reason is, as this Slate article explains:
“No-fault settlements are attractive because they allow both sides to claim victory. The plaintiff wins money, the defendant can say he wasn’t convicted, and both sides save a bundle in legal fees”
Can A Movie Copyright Infringement Lawsuit Be Defended?
Yes, of course it can. It may take just a little legal work to make the lawsuit “go away” or settle for a more reasonable amount than what was stated in the settlement demand letter. Or, it may take a lot of legal work and legal fees to prevail – aka “going all the way.”
The US Copyright Act allows the plaintiff movie company to be generally be awarded between $750 up to a rare but possible $150,000 plus attorneys fees if they win. And if you prevail, you may be awarded your attorneys fees and costs by the judge.
Whether you in fact downloaded (or “streamed” via PopCornTIme) a copyrighted movie does not mean the movie company has a slam dunk case against you. Similarly, even if you did not download the movie it does not mean that you will win. Litigation is inherently risky, burdensome, expensive – and mostly unfair for most people and businesses. We do have the demonstrated ability to not let the movie company push you around. When we are retained by a client to fight back, we will do so. And with the client’s best interests in mind.
Here are the cases we are representing clients in and speaking with people targeted in BitTorrent copyright infringement lawsuits all across the country. Click on the link to learn more.
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