9. FAQ

Here I will try to answer some of the most common questions raised by people facing a potential lawsuit over a copyright dispute.

If I ignore this will it just go away?

The short answer is 'No.'  If you ignore the initial letter from the ISP, and barring some very unlikely intervention on the part of the court, you will undoubtedly be contacted by the plaintiffs attorney demanding money.  Their credibility of their threat to go to court and name you depends on the case, where it is filed, and the plaintiffs attorney.  To discuss whether your case is one where there is reason to believe that the plaintiffs will not proceed call or email me to discuss your case.

What is my best option?

Almost every person who calls me about a copyright case wants me to tell them what to do. The truth is, the only person who can make that decision is you. The best way to handle the case depends on many things, but most importantly it depends on what you are willing to risk, and how much it is worth to you to either fight the case, or make it go away.

What that means is, I cannot tell you what the answer is, I can only help you figure it out for yourself.

How long do I have to make a decision?

If you have received a notice of subpoena, you will see a deadline listed on it for your ISP to release your information.  That date is selected by the plaintiff.  It is not endorsed by the court or your ISP.  Realistically, from what I can tell, the ISPs are complying with these subpoenas in approximately 45 to 60 days, rather than 30, and even after the plaintiffs get your information, they are a long way from actually naming you, so you have some time.

However, do not let indecision get the better of you.  If you want to fight the case, you have more options before your information is released.  If you want to settle, the plaintiffs tend to accept lesser settlement figures if you do so early.

Should I ask around to figure out who did this?

As discussed elsewhere, in these cases the defendant's own knowledge is oftentimes the only evidence of infringement available to the plaintiffs. That could be knowledge of his or her own infringement, or his or her knowledge that a child or roommate downloaded something. If you don't know, you can always answer by saying you don't know, and if no one knows anything then no one can prove liability. But if you start investigating, the only person it is going to help will be the plaintiffs.

Am I really looking at $150,000 in damages?

Laws are written by defining maximum and minimum potential punishments. It is wrong to assume that just because the maximum possible award is $150,000, that if you lose that is necessarily what you will be ordered to pay. Likewise, it would be wrong to assume that just because the copyright statute allows a judge to order the plaintiffs to award your attorney fees if you prevail, that a court necessarily will do so.

This allegedly happened quite a while ago, how do I know there are not more claims that can surface in the future?

This is the one question for which there is the least satisfactory answer, but fortunately, it has not been an issue.  The majority of defendants are facing only one allegation of infringement.  On occasion, however, a defendant will receive one notice of subpoena followed by another.  On other occasions, the defendant will receive one notice of subpoena, and another will be pending, but the defendant will not have any reason to be aware of it.

Unless you have received more than one notice of subpoena, you should assume for the moment that there is only one allegation.  It is possible to confirm that by contacting the plaintiffs and providing the IP address on the subpoena.  The plaintiffs will check their records, and they should be able to see any and all pending allegations, including any that have not yet resulted in a subpoena being issued.

The more tech-savvy users may observe that there is a flaw in this system: if you have a dynamic IP address (and almost everyone does) your IP address will change every month or so.  If there are other infringements that the plaintiffs are aware of, but are associated with IP addresses other than the one for which you already got a subpoena notice, then there is no possible way for anyone to know about it.  Fortunately, this has not been a problem.  I have never experienced this potential problem myself, and in asking around I have found only one occasion where this has happened.  In that case, the plaintiffs took the position that it was their fault for not making the defendant aware of it when that defendant negotiated a resolution to their case, and as a result, the plaintiffs dismissed that case outright, without any additional negotiations.

All I can say is that this has not come up as an issue in any case I have seen personally.  Also, remember, the plaintiffs are not out for blood, they are out for money.  If they try to extract multiple settlements from the same defendant, the system they have created is going to get very ugly, very quickly, and they have no interest in that.  They don't want to fight, they just want to get paid.

Why are they doing this to me?

It's not personal. It's not even ideological. The plaintiffs don't want to hurt you; they aren't angry with you; they aren't out to get you. It's much simpler than that. They just want money. It's not about you, it's about your money. Thinking about these cases in personal terms will only make you think about the case in an unhelpful way.

Do I have to go to the court? Do I have to send the plaintiffs something?

You will generally receive a 'notice of subpoena,' but it is your ISP that actually has to make a response. The notice of subpoena does not require you to do anything.

 

8. Final Thoughts