3. Post-Subpoena Stage

If and when the plaintiffs receive a response to the subpoena, the plaintiffs will send a letter saying that, unless the person who owns the internet connection is willing to settle the plaintiffs will replace the name "John Doe Number 27" with that person's name.  In cases which were initially filed in a court without personal jurisdiction, the plaintiffs will (theoretically) file a new case in the federal court with jurisdiction over the defendant with his or her name in the title of the case.  For the last two years we have been left to speculate as to whether the plaintiffs would actually do so, but recently several such cases have indeed been filed here in Massachusetts. In cases which were initially filed in a court that does have jurisdiction over the defendant, all that is required is for the plaintiffs to file a motion to amend the complaint changing “John Doe” to the name of the defendant. 

In these letters demanding money to settle the case, the settlement demands originally ranged from $300 to $1,500 per infringement, but have increased dramatically in the very early stages of these lawsuits.  Today, in the majority of cases, the intitial demand will be approximately $3,500.00, but somecases have included demands ranging from $4,500 to $7,000.  The determining factor in these demands are the number of defendants (the fewer, the more the plaintiffs demand), and what the plaintiffs know about how much the IP address they have targeted has uploaded to other people.

The $3,500 to $7,000 range is significant because (a) it is approximately what it would cost to defend the case in court (but, see here regarding settlment), and (b) it falls within the lower range of what a court could award after a finding of liability (see here regarding defending in court).

Published accounts suggest that the plaintiffs know that they have selected a price point below what it would cost to defend an actual lawsuit, and will drive that point home with every means at their disposal in order to extract settlements.  You can see an example of such pressure here.

The Plaintiffs May Never File a Case Against You

There are two different kinds of P2P cases – cases which are filed and pending in a court that does not have jurisdiction over the John Doe defendants (for example, Randazza, Prenda Law, and Malibu Media cases)   and ones that are filed and pending in the court where the John Doe defendants live (in Massachusetts, for example, cases filed by Marvin Cable and Daniel Ruggierio).

If yours is the first kind of case, in which the case is pending in a court without jurisdiction over you, one option is to do nothing.  You can waive your opportunity to challenge the subpoena and wait for the plaintiffs to decide whether it is worth their time to have you served, pay the filing fee, and get a lawyer to handle the case in your jurisdiction.  In cases where the defendant does not pay up, the plaintiffs may simply decide that it is more cost effective to spend their time harvesting settlements from the vast majority of people who decide to settle.  Without knowing the number of people who settle based on the threatening letter, no one can know what percentage of the people who do not are actually being sued, and the only people with the numbers to figure it out are the plaintiffs.

If yours is the second kind of case, which are investigated, prosecuted, and pending in a court with jursidiction over you, I am not aware of any particular reason to believe that the plaintiffs are not prepared to name the John Doe defendants who do not respond to their demands to settle.  Indeed, such cases have begun to be filed against individual named defendants as of October, 2012.

In general, if the case is pending in a court that does not have jurisdiction, or is named Prenda Law, Malibu Media, or Liberty Media vs. Does, there is substantial reason to doubt that the plaintiffs will name the defendants who do not respond to settlement demands, whereas in cases filed in courts that do have jurisdiction, the only prudent thing to do is to proceed on the assumption that the plaintiffs are prepared to name any John Doe defendants who do not respond to settlement demands.

If the case is pending in a court that does have jurisdiction, and you are not named in the complaint, it remains your choice as to whether you prefer to call the bluff of the plaintiffs, and do nothing. Doing so might make sense for people who have decided to fight the case in court anyway, though if that is your inclination, the option of filing a motion to quash would be at least equally sensible.  If you are named in the complaint, however, you should contact an attorney immediately becuase failure to answer the complaint in a timely manner can result in a default judgement being entered against you.

 

2. Defending Subpoena for Identifying Information

4. Settlement