“What Happens Now That the ISP Subpoena Date Has Passed?” – an update for those accused of downloading illegal movies, music, or software.

One of the interesting niche areas of law that the Cashman Law Firm practices is Cyberlaw, where we protect internet users against companies who accuse them of copyright infringement based on illegally downloaded movies, music, and software.

A few weeks ago, a number of lawsuits have been filed where the plaintiffs (e.g., Lucas Entertainment, Inc.) have filed subpoena requests against a few hundred or in some cases a few thousand potential defendants, amicably called “John Doe #XXX.” Their intent was to have the internet service provider (ISP) turn over their subscribers’ information so that they can contact them directly to elicit a multi-thousand-dollar settlement for the illegal file(s) that were downloaded based on the internet user’s account or IP address.

Many of these subpoena deadlines have since passed, and now internet users who have been caught downloading are asking me what happens now.

Being that a majority of ISPs have clauses since the September, 11th 2001 World Trade Center attacks and the Patriot Act that followed which allow the ISPs to turn over subscriber information to third parties, regardless of the subscriber’s attempts to suppress the subpoena with what is called a motion to quash, it is likely that many ISPs have nevertheless turned over user information to these companies.

The next step is for the movie and music companies to do an analysis of which downloaders are easy targets, e.g., “low hanging fruits,” and which will be more difficult to approach. Because of the high cost in attorney fees in order to track down and contact the accused downloaders, they will likely classify users into groups — those that are unrepresented by an attorney, those that may have a defense (e.g., the download was from a cybercafe or some IP address where they will have difficulty proving that it was that user at that keyboard at that IP address linked to the download of that movie (or music file or piece of software), and last, those that will be difficult to approach [likely because they are represented by an attorney].

Once they are finished with the analysis, the phone calls, letters, and threats will start. They will first call those they believe will not defend themselves and they will collect the maximum settlement amount. Those that pose some threat to them (e.g., they have a defense), they will likely be offered a lower settlement amount (which the attorneys will claim will be significantly cheaper to accept and pay rather than defend themselves in a lawsuit, even if they are found not guilty). Last, but not least, those that are represented by an attorney will likely be contacted last, as the competent cyberlaw attorney will be aware of the law and defenses which would hinder them from collecting a settlement from their clients. Additionally, the attorney will force them to adhere to the law and he will know what acts and statements would be considered deceptive, threatening, or in violation of consumer protection laws. Because the other side knows that they can be quickly and effectively sued by the attorney if they err in attempting to collect a settlement from a potential defendant (and not an actual defendant, because in most cases they will try to extract a settlement without even filing a lawsuit).

This appears to be the state of affairs as they are right now with a number of the copyright infringement cases that are currently in progress. Obviously they could start contacting potential defendants to elicit a settlement as soon as tomorrow, or they could gather evidence and wait until the potential defendant has lost any records of a defense they would have asserted up to the statute of limitations period (this would likely be defendable based on a laches or similar defense). Similarly, they may go after each defendant WITHOUT doing an analysis separating out those that would be difficult to collect from from those who would be easy to collect from. We cannot know what goes on behind closed doors, but this would be bad business for them, so an accused internet user must assume that they will measure his ability to defend himself, and he must assume they will take into consideration whether there is a lawyer defending him or whether he is unprotected.


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