Monday, April 29, 2013

ISP Sent You A Letter? Don't Freak Out!

Don't let copyright infringement letter scare youIn Seattle, like elsewhere, there are hundreds of people getting letters from their ISP right now saying that a federal lawsuit is pending and their personal information will be handed over to the plaintiff unless they "move to quash." Usually when I get these letters the caller is in a minor state of shock at receiving such a thing. Most didn't do what they are accused of doing, but the prospect of a federal lawsuit against them is scary.

There's a word for what happens next:  Catastrophizing.

It is an irrational fear that when something bad happens to you, the worst possible outcome is the only possible outcome. It happens to everyone to some degree.

But haven't you heard: Our worst fears and greatest hopes are seldom realized? It's true. Read this, and calm down.

There are two basic questions that I get from everyone who calls. I get them so frequently that I thought it would be easier to just post my canned answers here to try and pre-inform everyone who calls. What should I do? What will it cost? Here are the things you need to think about.

What Should I Do?

Everyone wants to know what they should do. The problem is most people think there is one best answer to this question.

There is not.

What you should do depends on lots and lots of things. Here are the criteria I usually try to go over with my new clients when answering those questions.

Do you need (or just want) to stay anonymous?

I point out that there is a difference between needing to stay anonymous, and just wanting to stay anonymous. A big difference.

I have clients who actually have a very good reason to try and keep their name out of a federal lawsuit. Public officials generally don't want their names involved in federal lawsuits. People with security clearances tend to need to keep their names out of public filings. People with state licenses that require reporting litigation need to avoid lawsuits.

But if you just think it would be better if the plaintiff didn't know who you are, then you probably don't need to stay anonymous. You just want to stay anonymous.

If you decide you need to stay anonymous, then you basically have only two options: move to quash the subpoena or settle the case. Those are your only two real options. And the only one that guarantees you keep your name out of the public filings is to settle. If you don't even want the plaintiff to know who you are, then you will need to use a neutral third party, like a lawyer, to negotiate a settlement. If you don't care if the plaintiff knows who you are, but you just don't want your name in public filings, then you could probably negotiate your own settlement.

As for a motion to quash, I'm not a big fan. The main reason is because the law is generally not on your side. Most judges will not grant them, so it frequently becomes a waste of money. That said, a motion to quash is an effective way to delay proceedings and to educate the judge about the case. But on balance, I don't recommend them.

Did you do it?

I won't ask you this question; only you know the truth. But if you did what you are accused of doing, then think about your real options.  Are you going to deny doing it in the hopes that the whole thing just fades away? Think again. Federal lawsuits are no joke. The truth will likely come out sooner or later. If you did it, seriously consider settling for the best deal you can get.

But if you didn't do it, then you should seriously consider fighting. If you didn't do it, then why should you pay anything? It's difficult to imagine why you should give your hard-earned money to a copyright plaintiff for no reason other than because you got a letter accusing you of something you didn't do. Understand this is the copyright troll business model: Accuse everyone; settle with anyone; drop the rest.

If you didn't do it, you have many options. In fact, you have all the options in the world. Just answer the complaint and deny any wrongdoing. Move to quash if you want. Settle. You can really do anything you want with almost no fear that your course will come back to haunt you.

So if you didn't do it, I highly, highly recommend you consider fighting. If you truly didn't do it, you have very little to lose by fighting. If you didn't do it, you should just answer the complaint and demand that the plaintiff drop you from the case.

Do you have the time, energy, and money to fight?

As a practical matter, if you don't have any money, any energy for a fight, or no time to devote to this, then those facts may dictate your choice. If you don't have any money to pay a settlement, then you can't really settle. If you don't have any money to pay for a motion to quash, then that isn't an option either. If you just don't have any time to dedicate to trying to win this lawsuit, then that also matters.

Bottom line, your options depend on what you can devote to your case. The fact that you have been sued doesn't magically put money in your pocket or time in your day. So if you really have absolutely no resources to devote to this case, then I'm not exactly sure what to tell you except that the plaintiff doesn't want to fight a battle that will ultimately put nothing in their pockets.

How Much Will It Cost?

How much will it cost? Well, how long is a rope?

There is no way I can tell you in advance how much it will cost. The cost is out of my control. You've been sued. Getting un-sued is a tricky thing.

That said, here are some general guidelines. First, do you want to stay anonymous or not? If you don't want your identity to be disclosed to anyone, including the plaintiff, then expect to pay more. Trying to stay anonymous is the most expensive of all your options. The reason is because staying anonymous requires the greatest number of court filings. The more documents you have to file, the greater the expense. Expect your legal fees to be greatest if you want to keep your identity a secret.

If you don't care about staying anonymous, then did you do it? If so, then consider settling out of court. Often settling is the cheapest option in the long run. Fighting a case in the hope that the plaintiff just won't be able to prove its case is a dangerous gamble. That said, the plaintiff must prove its case, and more often than not in these cases, the plaintiff has no desire to actually prove it.

But the real kicker is that the copyright laws provide for fee-shifting. What that means is if you are forced (or just decide) to stand on principle and fight your case, then at the end of the fight you should be able to push your legal fees back on the plaintiff. That means that the plaintiff may ultimately have to pay your legal fees for suing you.

So before you start catastrophizing, let me dispel some of your anxiety:

Are you going to jail? NO!

Are you going to lose your house? NO!

Are you going to lose your job? NO!

Will there be a huge default judgment against you? Well, as long as you are a reader of this blog, NO!

Will this cost you a huge amount of money? Depending on your definition of huge money, probably not.

Will this be free?  Probably not.

Will this situation be a pain in the butt until it's over? Probably, yes.

Is it fair that you have to deal with this even though you didn't do anything wrong? Life is not fair.

So all this said, if you find yourself in this situation, I recommend that you consider using this experience to learn about the legal system. Silver linings.

But above all, Keep Calm and Carry On. It will be over soon enough.