Way back in the paleolithic era, also known as September 1984, I was driving cross-country to a Congressional internship. I was listening to a local radio station that was broadcasting live from a campaign event for then-President Reagan. To warm up the crowd, the campaign played Bruce Springsteen’s “Born in the U.S.A.,” and in the background I could here the crowd scream the refrain. (I’m not sure it is the same event, but an article on the Ronald Reagan Rock in Hammonton, New Jersey sums things up pretty well.)
The sheer obliviousness shocked me: even a quick listen to the lyrics reveals that “Born in the U.S.A.” is not an affirmation of the greatness of the United States, but an exclamation against the shortchanging of a large portion of the American people: even though the song’s narrator was “Born in the U.S.A.,” “the first kick I took was when I hit the ground,” and since Vietnam it’s been “ten years down the road, nowhere to run, ain’t got nowhere to go.” This was not the storyline for an incumbent’s re-election campaign. Springsteen complained, and the campaign stopped using the song.
It is a presidential election year once again, and once again, the presidential campaigns’ choice of music is getting them into trouble. Former Speaker of the House Newt Gingrich and his campaign have been sued for using Survivor’s anthem, Eye of the Tiger, from the movie Rocky III. (Worse, Survivor frontman Dave Bickler retaliated by reading from Gingrich’s latest book “A Nation Like No Other”). Rep. Michelle Bachmann used Tom Petty’s “American Girl” until he got wind of it. Four years ago, Jackson Browne sued the Republican Party and John McCain for copyright infringement and false endorsement for using “Running on Empty” without permission.
There are issues of both copyright infringement and trademark infringement. Artists and other copyright owners are entitled to royalties when their works are played – that is what copyright is all about. However, for politically active artists, having those they disagree with using their works could tarnish the artist’s “brand.” Browne’s claims for false endorsement and a likelihood of confusion survived a motion to dismiss by Sen. McCain and the other defendants, who eventually settled the case.
National Public Radio has a good article on the pitfalls of campaign music: since they play the music in various locales, campaigns need licenses to legally play the songs. Both President Obama’s and Gov. Romney’s campaigns have created their own official campaign music lists, and have (presumably) cleared their use with the copyright holders. Former Senator Clinton’s 2008 Presidential campaign even had people vote for the official campaign song.
Campaigns use music the same way most of us do: to inspire, to create a connection. Speaker Gingrich probably wanted voters to associate him with Rocky, fighting against the odds after having taken a hard fall. However, what works in our personal lives doesn’t always translate well in a public venue. Political campaigns have gradually come to realize that ignoring the rights (and lyrics) of copyrighted songs doesn’t work.

Roscoe’s Chicken and Waffles used to have a restaurant near the Bay Oak Law offices in Oakland; an assistant used to visit nearly every weekend with her fiancé. Unfortunately, the Oakland branch closed a few years ago, and Roscoe’s is currently only in Southern California.

Unfortunately, Roscoe’s was in the legal news today because it lost a copyright infringement suit. The case itself is fairly standard: after years of ignoring requests to license music to be played, Roscoe’s Long Beach restaurant was caught playing eight songs for which it did not have a license – the house band played several John Coltrane selections and the CD player played several songs by the jazz fusion group Hiroshima. The “good” news is that the court awarded “only” $4,500 per song ($36,000 total) – it could have been far more. Some copyright infringement suits have up to $30,000 in damages per work. The “bad” news is that the plaintiffs were awarded $162,000 in attorneys’ fees, because the works infringed had their copyrights registered within 90 days of being published. This is one of the most important advantages to registering copyrights when they are published – the attorneys’ fee issue can (and often does) dominate the size of the case.

Which is worse – being hit by a “Trane” or having someone go all “Hiroshima” on you? It looks like Roscoe’s got a little bit of both.

Yes, they do go to jail. The law has very sharp claws.

Would you encourage your employees take a five-fingered discount from the office supply store? Probably not. Would you cheat a hard-working employee by not paying her? Of course not. However, in the press of the Great Recession, software piracy is still prevalent, and lax controls on software may be jeopardizing your company.

When buying new computers, it is easy to forget that there is more than just the cost for the hardware – you have to buy software, too. From word processors and spreadsheet programs to customized programs for your industry, it is tempting to copy programs with a single license onto multiple computers. Because after all, since you have the original media, you can do what you want, right? And who is going to check, anyway – the software sheriff?

There are two problems with this scenario, besides the fact that it is illegal. First, many programs today are subject to constant updating, and most updating is done only once per license. Your program may be missing important parts that keep it secure and let it work right. Second, there is a “software sheriff” around – the Business Software Alliance, or “BSA.” BSA’s members include some of the world’s leading software companies, like, Microsoft, Adobe, and Cisco.

Why Should You Care? The BSA is actively offering “rewards” to those who disclose illegal use of software. All a competitor or disgruntled ex-employee needs to do to mess with your business and cost you thousands of dollars and many hours of time is to contact the BSA and claim that your company is using unlicensed software. BSA is getting companies to pay $100,000 or more for their unlicensed software. This does not count the time you, your company and your counsel spend dealing with this unproductive hassle. You will save a lot of money by ensuring that you do not get stung. If your company gets taken to court for copyright infringement, your company can be held liable for up to $150,000 for willful infringement of each registered copyright, plus the attorneys’ fees and costs of the plaintiff, which can be even more substantial. Your company would also be stuck with paying for its own legal counsel, and the lost hours of employees and managers as they are called to participate in the litigation.

What to Do on Your Own. A preliminary step can be done by your own company: do a quick inventory of the software on a few computers. Select those computers that have been around the longest. Do not trust the employee using the computer to report the software – have someone else catalog all the software on each computer. Many programs are licensed for free, like Adobe Reader or Dropbox, and can be quite useful for many tasks. Others, like Adobe Photoshop or the Microsoft Office Suite can cost hundreds of dollars a copy, and are the type of software that the BSA is on the lookout for. Other common programs that are unlicensed are Symantec Antivirus programs and Microsoft Server. Match a license for each program installed. If you find an unlicensed copy or two, delete it and, if the program is needed, buy a new, licensed copy. If there is are a lot of unlicensed copies, stop and contact legal counsel for the next step.

(Incidentally, the software inventory can also turn up some other issues, such as BitTorrent clients like uTorrent, Deluge, or Vuze. Unless there is a legitimate purpose for using such software, such as distributing very large files within your business, an employee is probably using the bit torrent client to illegally copy and distribute music and movies. Since your company’s internet protocol (“IP”) address appears as the downloader, it will probably subject your company to liability. That is a nightmare you want to avoid.)

What to Do If The BSA Contacts You. If the BSA contacts you, or your preliminary inventory discovers a lot of unlicensed software, do not wait and hope that your company or your local computer guy can handle the problem. IT professionals do not have the legal background to understand the details of software licenses, which are written by legal professionals to bore and obfuscate. More importantly, your employees, or an IT professional that you employ to investigate, can be called as a witness against you if your company is sued for copyright infringement. The last thing you want is to give unfettered access to your computers to someone who can then be subpoenaed to reveal everything on your computers. If an IT professional is necessary, let your counsel do the hiring. Then the professional’s work is protected by the attorney work product doctrine or the attorney-client privilege. These concepts give attorneys and their clients private space to determine what to do, without the threat of those facts and discussions being revealed.

What Bay Oak Law Can Do for You. The sooner we are called in, the sooner we can cloak the investigation under the attorney work product doctrine and attorney-client privilege. We can manage the process to protect your data that might be demanded in a later lawsuit; if that information is destroyed, the modern trend in e-discovery is to sanction the party doing the destruction. Our lawyers have represented companies in many copyright infringement cases over the years. We can perform or supervise the license reviews. If necessary, we can assist in directing you to places where your company can buy properly licensed products. We can also assist in putting together the proper procedures to minimize future problems, including updating your employee handbook on this and other issues, like social media use.

Taking software is not cost-free – it can destroy your business. Paying for your software rewards those who work hard to develop the software, and is really much cheaper in the long run. If you have questions, call us at 510-208-5500, or contact andy@bayoaklaw.com.

You have received a notice from your Internet Service Provider, or “ISP,” indicating that you have been sued as a “Doe” in a bit torrent file sharing lawsuit. What now? Now you need to make some choices about how you want to handle this. But first, some information.

What does this even mean? This means that your Internet Protocol, or “IP” address (not necessarily your computer, but a computer using your internet connection) has been identified as part of a “swarm,” or a group of computers involved in sharing a certain file using a bit torrent client like Vuze, or LimeWire. You have been sued because the file in question was copyrighted material, and the company who owns the copyright is suing you for copyright infringement. Sharing or downloading copyrighted works violates the law. Deleting the file will not make this go away. Buying the copyrighted work after the fact will also not make this go away.

If you have no idea why you have been implicated, someone in your household (using your internet) may be the culprit. If your spouse/child/roommate is responsible, talk to them about how your household wants to handle this.

Your ISP should have sent you a letter explaining that your name and personal information have not yet been divulged. Right now, you are only identified by your IP address. The letter should include two dates: one is the deadline to file any legal action contesting the subpoena, and one is the date on which your ISP will provide the Plaintiff (the company that is suing you) with your name, address, and other information as directed by the Court.

Option 1 / So what if I just ignore this?

Recently, many people sued in this type of case have been fighting back, which means ISPs sometimes do not release information until after the date on your letter, and some cases are dismissed entirely. Some judges have dismissed all Doe defendants except one, because of issues with the way Plaintiffs group all the defendants together. This is great for the defendants who were dismissed, but very bad for the remaining defendant. You could take your chances hoping that you or your case might be dismissed, and you might be lucky. However:

If your name and address are released, you might be named in the lawsuit. This means you will no longer appear as “Doe ###,” instead your name will be listed as a Defendant in the case. Consider potential embarrassment and/or damage to your reputation if a Google search for your name returns this lawsuit, and your involvement in it. Has this ever happened? Yes, this is somewhat standard in these cases.

Costs for Ignoring It

Of course, there are no attorneys fees or filing fees if you do not answer the complaint or file any legal action. However, if that is the choice you choose, the Plaintiff may seek a Default Judgment. This is an automatic decision by the Court saying that since you did not defend yourself, the Court has no choice but to decide in favor of the Plaintiff. You will owe this amount to the Plaintiff, and if you keep ignoring it, the Plaintiff could levy your paycheck or your assets.
Has this ever happened? Yes. For example on October 7, 2011 in the Northern District of CA, Judge Alsup granted $20,000 default judgments against two defendants in a file sharing case.

Option 2 / I want to fight this!

Lawsuits that target “swarms” of bit torrent sharers have been contentious in legal and online communities. Lawyers who represent Plaintiffs in these cases have been labeled “copyright trolls” and the lawsuits have been accused of being many things, ranging from collection rackets to extortion. At this time, none of these cases have actually gone to trial, and some people doubt that any will.

Some defendants have fought back with either (1) a Motion to Quash, which asks the Court to invalidate the subpoena for their information, or (2) a Motion to Dismiss, which asks the Court to dismiss them from the lawsuit. These motions are often successful.

You can try to write and file one of these motions without a lawyer. However, hiring a lawyer gives you several advantages. When you are represented by a lawyer, the Plaintiff is no longer allowed to contact you except through your lawyer, which will prevent harassment if the Plaintiff gets your personal information. Communicating through a lawyer means you will not incriminate yourself by inadvertently revealing personal information, or by admitting anything you shouldn’t. While we can’t speak for other lawyers, Bay Oak Law is experienced in civil litigation, and can help you draft and file your opposition. Defending you is our job, and we are good at it.

However, the plaintiffs have been cycling through courts, making it more difficult for defendants’ counsel to appear. Lawyers are admitted to practice in individual states after taking a several-day long bar exam for the state, and few are able to appear in even two or three different states. They can be admitted to practice in federal courts, but the admission cost can be cumbersome and expensive — something the plaintiff is counting on. Many BitTorrent cases even two years ago were filed in California’s federal courts, but the federal judges in California quickly soured on these cases. Now, they are filed in state and federal courts all over the nation: Louisiana, Florida, Illinois, and Pennsylvania are courts in which they have recently filed.

Also, many courts do not allow “Does” — those whose IP addresses are known, but whose names have yet to be released — to file a motion as a “Doe.” That means that their real identity has to be used, and it becomes part of the public record.

What are you risking if you fight? Sometimes you can’t fight without revealing your identifying information. Even if your name and personal information are not revealed, if you reveal which IP address you are, or which Doe, the Plaintiff may decide to make an example of you and sue you individually. If this happens, the Plaintiff is far less likely to settle for a small amount, and you may end up with a larger judgment against you. Remember that sharing or downloading copyrighted files without the permission of the copyright holder violates the law, and you might end up paying for it in court.

Costs for Fighting

Depending on your facts, a motion to quash or dismiss requires a retainer of at least $1500, and perhaps more, based upon the facts. A retainer is an estimate of the cost for the first two months. Bay Oak Law charges $325 an hour for Andrew K Jacobson’s time; he has been a lawyer in California since 1990. Filing fees include first appearance fees, charged by the court, from $350 for federal courts, to $435 for California courts; other states have different first appearance fees. While federal courts generally do not have motion fees, many state courts do. In California, $60 has to be paid to file most motions. We require a signed contract between our client and our firm, called an engagement letter, and a check for the retainer before we can start.

Option 3 / Just make this go away !

Many people do not want to risk having their identity revealed, or do not want the risk, time commitment, or attorney’s fees associated with a legal battle. In this case, you can settle with the Plaintiff, often for a few thousand dollars.

We recommend you do this through an attorney, who can protect your personal information and your rights. Also, when you are represented by an attorney, the Plaintiff can no longer contact you except through that attorney. This means no harassing phone calls or letters. An experienced attorney can often get a better deal on settlement because of prior and future relationships with Plaintiff’s attorneys, can make sure negotiations stay anonymous and do not incriminate you in any way, and can make sure the settlement agreement legitimately settles your case and protects your interests. Bay Oak Law is experienced in negotiating this type of settlement.

Costs for Settling

Bay Oak Law’s experience has been that most cases that settlements are over $1500, and can range up to $7000, if the IP address is connected to multiple movies of that particular plaintiff; a settlement with one studio cannot prevent another studio from seeking your information and suing. Settlements generally forgive all claims that a particular plaintiff has against that IP address. In many — but not all — cases, a settlement can be done before the plaintiff learns of the true identity behind the IP address. The attorney will sign the agreement on behalf of the particular “Doe” with that particular IP address. The plaintiff often gives discounts for this, since they do not have to do that much work.

To negotiate a settlement like this, Bay Oak Law requires a retainer of $1000, and $700 of that is non-refundable. This is not a guarantee that we can do it for $1000 or less, although in most cases, we can and do it for less. We charge by the hour, and we can usually negotiate a resolution quickly. We require a signed contract between our client and our firm, called an engagement letter, and a check for the retainer before we can start.

I am sure no one in my household was involved in this.

You need to show real evidence that you would not or could not have been involved in downloading or sharing the file. Our firm had a good result for a client who could prove that the client did not have the IP address at the time the alleged downloading occurred. However, that is not the norm. If someone accessed your wireless router, you may not be legally liable, but you would have to have real evidence to back up your assertion. It should not be a shock to know that many people claim that someone else did it; the needed difference has to be evidence to prove it. A 93-year-old great-grandmother with a wireless router that is not password-protected is going to get more people to believe that she didn’t download something than a college student with a password-protected router. We have an article on our website about the importance of securing your routers.

If you have received a subpoena notice like this from your ISP, we would be happy to discuss your case, for 15 minutes free of charge. Give us a call at (510) 208-5500, or email admin@bayoaklaw.com.

The Guardian newspaper in London reported on our lawsuit on behalf of the origami artists.

One of the joys of working this case is the quality of our clients. They are always polite, encouraging, and engaged, even though we sometimes need to use four different languages (English, Japanese, Spanish, and Italian). Their creativity and good humor are astounding. You can check out their creations by clicking on their names:

Robert Lang

Sirgo Manuel Alvarez

Nicola Bandoni

Jason Ku

Toshikazu Kawasaki (who will be featured speaker at the Origami USA convention in late June)

Noboru Miyajima

Without giving away too many details, we have been contacted by potential clients whose internet protocol information is being sought because it has been connected with illegal downloads of movies. However, these people only owned the wireless routers that were used to receive the movie; they did not download the movie themselves. Someone else downloaded the movies from the wireless router because the router was not password secured. The lesson: password secure your wireless router, so that your neighbors are not implicating you in their illegal actions.

First, downloading a movie or song off the internet without the proper permission (Hulu, Netflix, or iTunes – good idea; BitTorrent – bad idea) is copyright infringement. If someone uses your router to illegally copy content, you might have your records discovered if the copyright owner subpoenas your identifying information from your Internet provider. Even if you show that you did not actually download the file and thereby avoid liability, you are stuck with hundreds or thousands of dollars of legal bills. Courts have found that those who do not actually download the information are not liable, but it can be an expensive proposition to disprove even if it ends quickly.

[4/27 Update: The Huffington Post has an even more disturbing example of what can go wrong when you fail to secure your router -- automatic weaponry and inaccurate accusations of downloading illegal images of children.]

The quick and easy fix is to password protect your router. At most, it is a five minute procedure synchronizing your router with your computer or smartphone. After that, it is a seamless access – most routers do not require you to put in the password every time. Also, remind those who do use the router (teenage children, perhaps?) that copyright infringement is illegal, and has serious consequences to it. There is too much legal content accessible on the Internet to bother with the illegal stuff.