If a copyright holder like Malibu Media or Strike 3 believes a person or persons has downloaded protected content without permission, they may take two courses of action. First, they may send a notice to the internet service provider (ISP) that services the offending individual. When that happens, the ISP will immediately send a notice to the customer in question alleging them of copyright infringement and demanding that they stop (in fact, some ISPs will penalize the person by freezing or slowing their internet access). Second, they can sue the alleged infringer, and subpoena the ISP for the contact information of the infringer. This will result in the ISP sending the infringer a letter notifying them of same.
Someone who receives a copyright infringement notice from his/her ISP needs to act quickly and smartly. Copyright infringement is a serious situation and the laws strongly favor the copyright holder in most instances. The following is a guide for anyone who has received a copyright infringement notice.
What Companies Send Copyright Infringement Notices?
A copyright infringement notice will most often come from one’s ISP. A person with a blog or who otherwise owns a website may also receive one from his/her web hosting company, assuming the infringed content is published on said site. The notice typically states that the I.P. address of the customer in question has been associated with illegally downloading copyrighted content. Further, the ISP intends to provide its customer’s name and address to the copyright holder so that the latter can pursue legal or civil action.
Why Did My ISP Send a Copyright Infringement Notice?
If one’s ISP has sent a copyright infringement notice, then either their technology has detected infringing activity (usually based on visits to torrent sites and the like) or the copyright holder has sued the infringer, claiming someone has used the ISP’s network to download content illegally. Since, at least at the outset, all the ISP has is an I.P. address, they subpoena the ISP to legally force them to reveal the name of the account holder associated with that I.P. address so that they can name them in the lawsuit and hold them responsible directly (without having to go through the ISP).
Understanding the Copyright Infringement Notice
“Malibu Media, LLC has filed a federal lawsuit in the United States District Court…”This identifies the copyright holder that is accusing the notice recipient of infringement.
“You have been identified in our records by your assigned Internet Protocol (“IP”) address, which is unique to each user.”The ISP is indicating that the copyright holder has provided a list of IP addresses associated with the illegal download or upload of a copyrighted work, and the notice recipient’s IP address is on that list.
“The court has ordered that Comcast to supply your name, address, and other information to Malibu Media, LLC…”The copyright holder does not have the names or contact information of the individuals it is trying to sue, and as such has subpoenaed the ISP in order to obtain them.
“Comcast will provide your name, address, and other information as directed by the Order unless you or your attorney file something with the District of New Jersey…”The ISP is stating it intends to comply and provide all the information the copyright holder needs to pursue a civil case. There are things that an attorney can do keep one’s information private in court records, but very little that can prevent the ISP from providing the contact information altogether. The letter also indicates a deadline to file any such motion.
What is a Copyright Infringement Lawsuit Going to Cost Me?
Unfortunately, the stakes are high in copyright infringement claims due to the principle of statutory damages. This means that even if the plaintiff didn’t lose a cent due to your infringement, they can still pursue damages of up to $150,000 per copyrighted work (but see some practical solutions, below). And that’s not including attorney’s fees. The plaintiff will usually have attached a list of copyrighted films to the lawsuit so that you know how many copyrighted works are involved. The more works, the greater the measure of damages and cost.
What Do I Do If I Received a Copyright Infringement Notice?
- Don’t call the ISP and/or copyright holder. It is too late to say, “Sorry.” The copyright holder has already decided that the incident is serious enough to justify legal proceedings. The ISP is a neutral third party. More importantly, any acknowledgment of having downloaded the content without permission can be used against one in a civil or criminal case. If you are a defendant in a civil or criminal case it’s always risky to represent yourself for this reason alone (and others).
- Contact an experienced copyright infringement defense lawyer. For the reasons explained above, it simply makes sense to consult with an expert who can guide you as to the best course of action under the circumstances.
- Don’t offer to pay for the content. The ISP cannot accept payment for the content. Moreover, the copyright holder is past the point of wanting the fair market price; in most cases the copyright holder intends to sue for damages and is expecting thousands of dollars (see above). That may seem like a harsh reaction to a stolen movie(s) or song(s), but it is legal and the copyright holder is well within its legal rights to do so. And as stated above, any acknowledgment of having pirated content can be used against one in legal/civil proceedings.
- Don’t attempt to justify the action. Some people believe they can reach out to their ISP or the copyright holder and explain themselves. Don’t. Again, this could only end up being used against one in court.
- Don’t publish disparaging remarks. There’s no point in trying to insult and belittle the copyright holder, the content, or one’s ISP. In the best-case scenario, it will accomplish nothing. In the worst, a person may accidentally admit guilt/liability, which can be used against one in court.
- Don’t continue to pirate content. The letter should serve as a warning that it is possible to get caught illegally downloading copyrighted content. Continuing to do so can only lead to more trouble.
What Actions Can One Take in Response to a Copyright Infringement Notice?
Note: As explained above, one should discuss these options with a copyright infringement defense lawyer before taking action.
- Do nothing. The consequences of not doing anything are serious. Ignoring the letter from the ISP means that it will assuredly provide one’s information to the copyright holder, which will then move forward with a civil case. If the person continues to ignore threats and notices from the copyright holder in regards to the civil case, one is likely to be convicted by default. This in turn can mean being liable for a substantial amount of money as explained above.
- Go to trial. This can be very expensive and time-consuming, depending on who the copyright holder is. Aggressive copyright holders such as Malibu Media and Strike 3 Holdings pride themselves on making the trial process painful and cost-prohibitive for the average person. Many copyright holders have deep pockets and will use them to make an example out of anyone who tries to avoid a settlement (which the company usually prefers). Finally, a Federal litigation defense law firm could charge more as their initial retainer fee than it could cost to settle the case especially early on.
- Settle. In most cases, this is the least painful and costly route. Although unfair, even a person who is innocent may save themselves a lot of headaches (and money) by simply settling the case. Having an experienced attorney can ensure that the settlement is favorable to the accused and reduce the settlement amount to something reasonable and manageable.
What Are the Benefits of Settling a Copyright Infringement Case?
Regardless of whether one is innocent or guilty of copyright infringement, a settlement is almost always the most logical choice. Here are some reasons:
- Less time-consuming. Choosing to settle will reduce the amount of time one spends dealing with the case overall. A copyright infringement case can easily drag on for months if not years.
- Less stress. Going to trial means facing a judge and prosecutor, which can be daunting. There is also the uncertainty as to whether or not one will get a favorable ruling, and the risk that one could be found guilty and thus liable for a gargantuan sum.
- Less expensive. As mentioned already, this will cost significantly less, both in terms of legal fees and what is ultimately paid to the copyright holder.
- Maintain privacy. Settlement agreements to copyright infringement cases should include clauses protecting one’s privacy. In other words, the copyright holder will not make public the name of the defendant. This particularly important to those who are accused of downloading explicit (e.g. porn) or controversial content.
- Ensure finality. Even if one wins a copyright infringement lawsuit, the copyright holder can opt to appeal the decision—this means more money, more time, more stress. But settlements cannot be appealed; once both parties signed, the matter is final.
Frequently Asked Questions
Who Should I Contact For Help With My Copyright Infringement Notice?
If you or a loved one has been charged with copyright infringement, contact the lawyers of the Rosenblum Law today. We extensive experience winning cases and negotiating settlements involving aggressive copyright holders. Our team of skilled defense attorneys will do what they can to protect your rights and mitigate the cost of a lawsuit. E-mail or call 888-815-364 for a free consultation.