I get this question from time to time:
“I got a subpoena from my ISP saying that they have been ordered to produce information about my internet usage. It looks like a copyright troll, but I don’t want my good name smeared. What can I do?”
Unfortunately, this happens all the time, and is becoming more common. To illustrate by example, attorneys represent copyright trolls will, en masse, file copyright infringement lawsuits. To make matters worse for defendants, they often represent porn distributors, making people reticent to even get involved in the case, for fear of having their reputations being forever tarnished (no one wants a porn-related lawsuit to appear when someone Googles their name). The scheme basically goes like this:
- Use software to detect an IP address which used BitTorrent to download a copyrighted item.
- Associate the IP address with an ISP.
- File a lawsuit for copyright infringement in a venue convenient to the plaintiff.
- Join hundreds, thousands, or even tens of thousands of John Does to the lawsuit.
- Subpoena records from the ISP about the defendant account holders.
- Wait for the ISP to give notice to the account holder that it intends to produce the documents subject to subpoena.
- Send a demand letter to the account holder (usually demanding $2,900 to $3,400 for dismissal).
- Wait for the checks to roll on in.
Getting a letter from a lawyer is scary. I’ve gotten them, and I’m not afraid to admit that I was scared – at first. It’s important to remember that usually a letter is just a letter (unless it’s really a notice of some sort). A demand letter doesn’t usually have the force of law behind it. It’s just a demand. On the other hand, it’s a DEMAND! They’re saying, “pay up or your a** is gettin’ served! No matter how right you are, getting sued is no fun, and, like war, is usually expensive in terms of blood and treasure.
When you get a notice of subpoena from the ISP, you have a few options:
- File an objection with the Court.
- Do nothing.
- Try to reach a settlement with the plaintiff.
None of these are particularly appealing, and what you do will depend on your unique situation.
- If money is not an object and you would abhor your name being tied to a porn-related lawsuit, make an offer. This is probably not the best strategic time to try and settle, but if you want out and a few thousand bucks is no big deal, throw money at the problem. After all, that’s all they’re after.
- If your good name is important, you have some money, and you expect or hope to have more in the future, you probably want to hire an attorney. There are myriad defenses, as will be outlined next Monday, but you’re going to want a lawyer to do this part.
- If you could care less about your good name, do not have a good name, have no assets (and don’t intend to get any), and don’t want to bother with litigation, do nothing. Not a good plan for 99.9% of the world, but if you are a hobo and don’t care if someone takes your last can of beans, let one of the other ten bazillion defendants do the heavy-lifting or let the troll get their judgment, which they can proceed to use as toilet tissue.
Remember, these lawsuits aren’t cost effective for plaintiffs if they have to do a lot of work. The trolls rely on your fears for their paydays. Next week, I’ll discuss the reasons suits like this can be defended and often beaten on technicalities or on the merits.