Tuesday, August 23, 2016

Defending Against Accusations of Bittorrent Downloading

Often people accused of illegal bittorrent downloading call me and have a fatal misunderstanding of how our legal system works. Many times people call and say "but I didn't do it so this case should be dismissed."  While at first blush that statement seems to make sense, it actually fails to appreciate how a lawsuit works.  So here is a very simple explanation.

When you and someone else are in a dispute that can't be resolved privately, you can file a lawsuit to have a court resolve it. That process is called litigation. In our country, we use a so-called adversarial litigation procedure. What that basically means is that one party makes a formal complaint with the court that accuses a second party of some wrongdoing. Then the second party formally responds by answering the complaint either admitting or denying the accusations. If the second party denies the wrongdoing, then the court is responsible for figuring out which side is telling the truth.

But what you have to understand is that the adversarial process requires that the second party actually deny having done anything wrong. In other words, once someone files a formal complaint, you can't just ignore it because you don't think you did anything wrong. Once you are formally accused, you must formally respond.  If you don't, then the court will make a determination of who is telling the truth. Common sense should tell you that if the only person in court talking is saying that you did something wrong, and you aren't there to defend yourself, then guess who is going to win.

This may sound insultingly obvious, but it pains me how many people fail to grasp this simple concept. These bittorrent cases proceed along the same trajectory each time.  They all start with a complaint, then some subpoenas, then more documents and letters, then many end up with default judgments. I usually get calls from people at every stage of these proceedings. Most times they tell me that someone told them they could just ignore the letters and the case would eventually go away.


As I mentioned earlier, if someone accuses you of doing something wrong in a formal lawsuit, and you just ignore it, at some point the plaintiff is going to ask the judge to enter a judgment against you because you just ignored it. And since the judge has never heard from you, the judge is going to give the plaintiff what the plaintiff is asking for.  Bottom line:  You cannot just ignore a federal lawsuit and think it will go away. It will not. Period. Anyone who tells you differently has no idea what they are talking about.

So the next thing people almost always say is "I can't afford a lawyer." I can understand that objection. Lawyers are not cheap. But do you need a lawyer? Most people think they do, and it is always better to have someone help you who knows how to do what you need done. But is it required? No.

Just ask Michael Wilson.

Like many people here in Seattle, Mr. Wilson has been accused of illegally downloading the Cobbler Nevada movie. Mr. Wilson received the same letters as everyone else, and apparently he can't afford to hire a lawyer. Fine. But did he just bury his head in the sand and ignore it? No, he didn't. Just below is the first document that Mr. Wilson filed with the court where he just asked for more time to answer the complaint against him. Note how simple this request is. No lawyer involved, no excuses, just a one-page request asking for some time.

Seem too simple?  Doesn't look like it was written by a lawyer. Is there any way a judge would grant that request?  Of course there is. Here is the judge's equally reasonable order granting Mr. Wilson more time.

Mr. Wilson denies that he did anything wrong so he would like the matter dismissed. Does he need a lawyer to do that?  Again, take a look at what he sent to the court.

Not elegant, not elaborate, just a request to dismiss the case. One page. Now as I said above, we have an adversarial litigation process. One party accuses, the other party denies, then comes the proof. Both sides have to pull together their case, then show up in front of the judge and make their cases. In other words, it's not enough to just accuse someone of doing something, you have to prove it.  And if that person comes forward with evidence that you did something wrong, it's also not enough to just deny doing it. You have to rebut that evidence. You don't have to prove your innocence, but you do have to cast some doubt on the evidence against you.

And that is exactly what the judge told Mr. Wilson in his case. Below is the judge's order denying Mr. Wilson's "motion to dismiss" but telling him that the proper way to challenge the plaintiff's complaint is by way of something called a summary judgment motion.

What that means is Mr. Wilson will have to demonstrate that he did not do what he is accused of. At a minimum he will have to challenge the evidence (if there is any) against him. There will be a formal proceeding, and both sides will get to have their say.

But the point is both sides have a chance to pull their case together before either side can ask the judge to pick a winner. That process is called discovery. It is a painful process but it is necessary to give each side an opportunity to gather their evidence and marshal their exhibits.

And here is the last thing Mr. Wilson mailed apparently after reading the judge's order denying his motion to dismiss.

So Mr. Wilson feels like the system is failing him. Unfortunately, the system is working exactly as it is supposed to. It is not enough to just say "I didn't do it" for the judge to throw the case out. Do you imagine any criminal defendant would ever be convicted if his case were thrown out just because he said "I didn't do it"?  Of course not.  "I didn't do it" is a valid defense for sure. But in an adversarial proceeding, there will be an opportunity for both sides to present their evidence. Then, once the judge (or jury) has seen all the evidence and heard all the arguments, someone will win and someone will lose.

But the point is that you don't need a lawyer to do all this for you. Mr. Wilson may be frustrated, but he is handling this process all by himself. It is a complex process full of safeguards for both sides. But it's still just a process intended to allow both sides an opportunity to make their case.