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 [email protected].