Copying music, movies, and software over the Internet using BitTorrent is now quite common. Sandvine recently released data on the amount of internet traffic used by top apps, with BitTorrent ranking as the #1 Upstream App, #4 Downstream App, and #4 Overall App behind Netflix, YouTube, and HTTP. What’s worse is that many people don’t even know that it’s illegal to use BitTorrent or other file-sharing programs to copy content. Given this history, it should come as no surprise that copyright holders have become increasingly aggressive in going after Internet file sharers.

While file-sharing laws began several years ago based on music sharing on services like Napster, Grokster, and LimeWire, the vast majority of mass copyright lawsuits now center on BitTorrent. Torrent lawsuits usually take the form of a copyright holder suing numerous “John Doe” or “Doe” defendants. The defendants are named as John Doe because the copyright holder knows them only by their individual IP addresses. However, once litigation has commenced, the copyright holder may seek the Court’s permission to issue subpoenas to the Internet service providers of the various Doe Defendants in the case. Subpoenas to ISPs will seek identification and contact information for the individuals in the case, including each individual’s name and address, and typically phone number and email address.

If you have received a subpoena letter from the ISP informing you that your information will be turned over to a massive copyright claimant in the near future, you and your family are likely under enormous stress. In addition, there is a lot of conflicting advice on the Internet, most of it posted by non-lawyers or by lawyers who have handled few or none of these types of lawsuits. Also, most online sources don’t really provide practical advice. Below is a plan of action that I recommend to clients and can hopefully help you resolve your copyright lawsuit.

single action

1. Do not ignore the summons letter. Make no mistake about it: you have been accused of copyright infringement by copying content over the Internet, and the copyright holder has filed a lawsuit. This is no laughing matter. There is a lot of bad advice on the internet that you can simply ignore a subpoena letter from the ISP. However, default judgments of over one million dollars ($1,000,000) have been awarded in multiple file sharing laws where ISP subpoena letters are disregarded. Ignoring an ISP subpoena letter can literally ruin your life, don’t do it.

2. Act fast. Take the ISP subpoena letter seriously and get going right away. With each case, the key parameter of your action plan is whether you will fight the claim or settle. You’ll want to determine this before the date your ISP gives your information to the copyright holder. In particular, unless the copyright holder has been prohibited from listing you publicly, the copyright holder will be free to do so once they have your information, which gives the copyright holder copyrights an additional influence on you (especially if the content you are accused of copying is pornographic). Similarly, getting information about file sharers is expensive for copyright holders: it requires a successful subpoena. Once your name is “out there,” it’s much more likely that a second copyright holder will decide to go after it.

3. Get the facts. The first step in determining whether you want to fight the case or settle is to determine if the allegations that have been made against you are true. Here is a checklist for your research:

General Background Questions

• Who are the computer users in your home?
• Of all the computer users, is any of them under 18 years of age?
• Do you or anyone else in your household copy content over the Internet?

General Computer Questions

• What is the make and model of the computers in your home, including desktops, laptops, servers, smart TVs, gaming platforms, digital media players including DVD players, Blu-Ray players, game consoles, portable gaming devices, phones and tablets.
• Is there a BitTorrent client installed on any computer in the house? If so, which ones?
• Is there antivirus software installed on any home computers? If so, which ones?
• Who is your broadband internet service provider?
• Who is your cable or satellite service provider?
• Who is your wireless service provider?

network issues

• Is your network fully wired or is there a wireless router?

Wireless router questions

• What different networks are configured for wireless access? For example, it is common to set up a “full access” network and a “guest” network.
• Does every network have a password or is it open?
• For each network with a password, who knows the password?
• Does the router keep a log of network access and show any unexplained activity?

Based on your investigation, you need to put together a picture of what really happened. Did you or anyone in your household use BitTorrent to copy copyrighted content? If so, who did it? Could your computer have been hacked? If so, do you have evidence that can support that?

4. Contact a lawyer. A knowledgeable attorney can explain your options in much more detail than a short article like this. Also, if you decide to negotiate a settlement, a lawyer can arrange for your identity to be kept secret from the copyright claimant. Most importantly, a qualified attorney can offer guidance on the correct approach for your case.

Ideally, you’ll want to contact an attorney who (1) has handled several of these lawsuits, (2) is able to litigate a case rather than just “negotiate a settlement,” and (3) is licensed to practice in your state and in the particular United States District Court in which you live.

First, file-sharing cases are, at heart, mired in copyright infringement. Most attorneys have never handled and never will handle a copyright infringement matter, and are unaware of the particular idiosyncrasies of copyright infringement claims. Consequently, an attorney who handled a personal injury claim for someone you know is unlikely to be the right choice to handle this type of claim. The same is true for an attorney handling DUI or divorce claims.

Second, many intellectual property attorneys who are familiar with copyright law rarely litigate cases. As a result, they are not going to have an idea of ​​the real dynamics of your case, such as the experience of the other side’s attorney, how much is a reasonable settlement, etc.

Third, a lawyer can only try a case in the courts in which he is admitted. For example, my firm’s copyright trial attorneys are admitted to the United States District Court for the Northern District of Illinois and the United States District Court for the Central District of Illinois. While most file sharing cases settle without significant litigation, your case may require significant litigation: If your chosen attorney is not admitted to the court in which the case will be tried, you will need to retain a local lawyer, that will only add to your expense.

5. Have your lawyer look for a lawsuit. Once you know what the copyright claimant wants, you and your attorney can determine the best approach to take with your case. In particular, if the claim is low enough, consider paying it off or having your attorney negotiate further. On the other hand, if the demand is high, your lawyer can advise you if you can win your case. You should know that litigating a copyright case is quite expensive. Many firms, like mine, offer ordinary families who are forced to litigate these claims advantageous terms so that they can fight a claim if necessary. Also, if you win your lawsuit, the copyright plaintiff may be forced to pay your attorneys’ fees.

If you have received a summons letter from the ISP, there is no doubt that you are under a lot of stress. No doubt you want to fix the situation as soon as possible. However, it is important to approach this decision carefully and without emotion. I hope the action plan I outlined can help you do that.