P2P Copyright Infringement Claims and You

Introduction

The last fifteen years have seen the emergence of myriad ways in which online users share media, one being Peer-to-Peer networks or “P2P.” Since the rise and fall of the notorious Napster network, copyright holders and distributors have become somewhat adept at locating users who are sharing protected content and serving them with copyright infringement suits. Despite the danger of suit, many users still continue to upload and download protected content on P2P networks such as Limewire, eDonkey, or Gnutella. Likewise, content distributors and copyright holders continue to notify users when their copyrights are being infringed by sharing on P2P networks. Once a user is contacted by their Internet Service Provider (ISP) or by counsel representing a copyright holder, the process of resolving with a copyright claim can begin.

Receiving Notice

There are a number of ways that content providers and distributors contact users regarding alleged copyright infringement, and in understanding any of them, the key is to not panic. Receiving a notice regarding infringement is not the end of the world, and there are steps you can take to resolve the matter.

I received a notice from my ISP regarding a subpoena, what do I do?

Typically, this notice is to inform you that your ISP has been contacted by an attorney representing a copyright holder regarding a lawsuit for copyright infringement by someone with your IP address. Since your ISP has access to the personal information

that connects you to your IP address (i.e. name, phone number, physical address), a copyright holder will use the power of a subpoena to request that your ISP provide them that information in order to contact and serve you with a lawsuit. From here, you have a couple of options:

  1. File a motion to quash the subpoena

    You can file a motion to quash in the court where the subpoena was issued (that information should be included in the letter from your ISP). You should contact a knowledgable attorney who is experienced in responding to subpoenas for personal information from ISPs in order to file this motion to quash in a timely manner.

  2. Request a protective order from the court

    You can request that the court that issued the subpoena grant you a protective order with respect to your personal information (name, address, phone number, etc.) This order will still allow the attorney(s) representing the copyright holder to gain access to your personal information from your ISP, but it will require that they keep that information confidential. In order to seek a protective order, you must first contact the law firm representing the copyright holder.

  3. Use an online service to settle any potential claim

    The notice from your ISP may include information about how to preemptively settle any claims associated with your IP address. Online services such as ClaimVendor (claimvendor.com) will allow you to view all claims associated with your IP address and to pay any requested settlement amount. Settling a claim in this manner will require the copyright holder to withdraw their subpoena with respect to your IP address.

  4. Do nothing

    Chances are that you may not feel particularly eager to hire an attorney to respond to a subpoena for your information, and you just feel like waiting for the copyright holder’s attorneys to contact you directly. In that case, read the next section.

I received a letter from the copyright holder’s attorney, what do I do?

Read the letter in its entirety. Once you’ve read everything that you were sent, go back through the communication and look for the following:

  1. Settlement Key

    If the firm is using a service such as ClaimVendor, the letter will include a unique identifying “Settlement Key” which will be included along with a link to the website where it can be used. This information will locate the settlement terms and amount requested by the copyright holder to settle your claim, as well as payment options.

  2. Settlement Deadline Date

    Almost always, letters requesting settlement will have a date included by which the offer of settlement will expire. Make sure that you locate and take notice of this date so that you don’t inadvertently let your chance for easy settlement expire.

  3. Firm Contact Information

    You may have questions about the settlement deadline or you can’t locate either the settlement key or settlement deadline date, and you can contact the attorneys’ firm who drafted the letter in order to retrieve this information.

Should I go ahead and settle?

Once you have been informed of a settlement offer, either through copyright holder’s counsel or in a notice from your ISP, you can choose to settle with the copyright holder and avoid any further litigation. You should consult a knowledgable copyright infringement defense attorney if you have any questions about your settlement options and whether to proceed with settling, but you should also consider the following information:

Benefits of Early Settlement:

  1. The settlement amount will be smallest at the earliest stages of the case.

    The longer litigation continues, the more expensive it becomes for the copyright holder to pursue the case and the more expensive it will be for you to settle with the copyright holder.

  2. Avoiding being directly named in the complaint.

    Ignoring an initial settlement offer until it expires may lead to Plaintiff (the copyright holder) amending their Complaint in order to name you as a Defendant. Having you named personally as a Defendant, like any step that increases the amount of litigation for the Plaintiff, will make any future settlement amount increase dramatically.

  3. Not having to appear in Court or respond to pleadings.

    If you are named personally as a Defendant, you will then receive a Summons to appear in the Court where the Complaint was filed, and you will be required to provide an Answer to the Complaint within a specified time period. If you do not respond with an Answer properly plead in that Court, the court may enter a default judgment against you.

  4. Keeping your personal identity private.

    Settling early will often require the settling parties to keep all personal identifying information (e.g. name, address, email, etc.) confidential per the terms of the settlement agreement. Once you have been named personally as a Defendant in a Complaint, the Court will require that you be identified publicly.

Dangers of Default:

If you choose to ignore this claim and refuse to settle, the Court may issue a default judgment against you, which can range from $750.00 to $30,000.00 per each infringed work (see United States Code Title 17, Section 504). If the Court finds that you were willful in your infringement, you may also face punitive damages reaching as high as $150,000.00 for each infringed work.

Why did the copyright holder file this suit against me?

The copyright holder has filed their copyright infringement suit in order to protect their creative content from being used and shared without their permission. They have done so in order to protect their business interests in the product as well as to safeguard the jobs and creative efforts of the employees who worked to create and distribute that product. The suit is not a suggestion that you personally prefer or desire the content that is being infringed upon, only an allegation that someone at your IP address was downloading and/or sharing that content. There are many reasons users will choose to share content over P2P networks, and often users will receive a boost in download speed from these networks if they continue to upload popular content.

Review

Keep in mind the following when resolving a copyright infringement claim:

  1. Read all notices from either your ISP or copyright holder’s attorney carefully.
  2. Consider the benefits of early settlement and do not neglect the settlement deadline.
  3. Consult with an attorney who is experienced in copyright infringement defense cases and discuss your options in settling or litigating a claim against you.