of “CSI” and other, less-glamorous treatises on forensic science know
that a crime is often solved by minutia: a pubic hair, a rope fiber,
a ragged knife wound. And for those with the stomach to handle it, forensics
bestows an endless wealth of deliquescent trivia: for instance, did
you know that corpses left out in the sun will eventually make a "pop"
when they finally succumb to bloat?
Okay. Now that the squeamish have been warned off, let's
tackle a really distasteful topic: getting sued for hundreds
of thousands of dollars for having the temerity to file-share copies
of "Margaritaville" by Jimmy Buffet and "It's Getting
Hot in Heere" by Nelly.
I'm not making that combo up. In one of the most recently
filed "RIAA" cases in the country (plaintiffs: UMG Recordings,
Warner Bros. Recordings, Capitol Records, to name a few), the target
is an individual in Lockport, New York, with (allegedly) as far-ranging
an array oftastes as I've ever seen. How else but via a commitment to
diversity do you explain someone who supposedly downloaded and shared
"Rockin' Robin" by the Jackson Five, and Toby Keith's "Beer
for My Horses?" I want to meet this guy.
But the relevant question here is not the odd ways in
which I contemplate broadening my social horizons, but what I can tell
you about the recent trend in copyright enforcement, because it's arrived
in Western New York. No longer will we be able to "tut-tut"
about little 12-year-old Bethany/Brittany/Madison in New York or Chicago
or Ft. Lauderdale, caught in the act and now tearfully coughing up $5,000
to settle her case before the music industry sues her out of her college
education. Here in Buffalo, or Rochester, or Lockport, we have to worry
about Bill, Debbie, and Joey, named in a lawsuit and wondering how they
can finance their defense by mortgaging a house that's sinking into
First, let us make no mistake: copyright infringement
is against the law, can be a crime, and is taken seriously by both copyright
holders and law enforcement. The civil cases (entity v. entity) can
lead to damage claims of up to $150,000 per willful violation, while
the criminal actions (government v. entity) can lead to sentences as
high as five years in the slammer. If you don’t take my word for it,
John Ashcroft's on-line trophy room for copyright prosecution.
That being said, and understanding that we live in a country
where large companies largely make the rules (for an analysis of how
current copyright policy is harming the development of culture in the
U.S., and for a nice dose of un-Ashcroft, visit the Berkman Center for
Internet and Society, http://cyber.law.harvard.edu/home),
the recent trend in copyright civil cases is something every American
should be concerned about. Like forensics, it's an ugly business, and
the devil is in the details.
The lawsuits currently being filed by various combinations
of music companies are brought (broadly speaking) in one of two ways:
Type #1. The case names anywhere from
1 to 150 "John Doe" Defendants, and then demands that the
Defendants' Internet Service Provider ("ISP") identify them
so they can then be named in the lawsuit.
Type #2. The Defendant is (thought
to be) identified prior to the filing of the case, and is named individually
as a Defendant.
If you are caught up in a case like type #1, you
won't know it for quite some time. First, the case will most likely
not be filed in your Federal District (of course, unless you're a nerd
like me, you won't notice a filing in the Western District of New York,
either, because you don't lurk around the court's website www.nywd.uscourts.gov,
researching new cases). Second, your name won't be used, since the Plaintiffs
will only be able to identify you by IP ("internet protocol")
address. Since you will have been reduced to a handful of numbers, the
Plaintiffs will need the assistance of your ISP to identify you.
It's at the point of this need to identify you where the
#1-type case gets interesting. While your ISP does keep a log
of subscribers and corresponding IP addresses, this isn't always certain
information. For many of us, an IP address is not a static number; for
instance, if you have DSL service, you have a "dynamic" IP
address that can vary from day-to-day. Second, as we all know, the person
who pays the bill isn't always the person who's giving out terabytes
of "Master of Puppets." And third, if you're a wi-fi user,
goodness only knows who's tapping into your signal.
And that's assuming that there isn't just an error in
ISP's the record-keeping and information retrieval system. I had one
client, happily no longer being sued by the music industry, whose information
as supplied by his ISP was just plain wrong. How did he suspect this?
Let's just say his musical tastes weren't as diverse as our man in Lockport,
while his supposed file-sharing log looked like the soundtrack to "Judgment
Despite all this, your ISP is still one of the ways the
music industry can identify anonymous file-sharers, which means they
will attempt to subpoena your information from your ISP. When
this happens, your ISP will notify you of their obligation to identify
you—unless you give them a reason not to send your private information
to the Plaintiffs.
This reason, supplied by you, would be what's called a
"Motion to Quash," which I know sounds sort of raunchy, but
actually is legal mechanism to protect your private information. It's
a Motion that points out to the Court the impropriety of your ISP being
forced to disclose your identity. As a tool to stop you from being identified,
it may or may not meet with success.
If you don’t file this "Motion to Quash," your
ISP will have to promptly obey the subpoena and turn over your info.
At that point, before they name you in the case, the Plaintiff(s) will
most likely contact you (or will hire a "settlement facilitator"
to contact you) to resolve the case.
If you learn nothing else from this article, I want you
to learn this. Once you are contacted: DO NOT TALK TO THEM. DO NOT WRITE
TO THEM. DO NOT SAY THINGS LIKE "BUT I DIDN'T KNOW IT WAS WRONG."
Things like this can compromise what otherwise might be a great defense
to a case (and they tape record it). Just say, "I'll have my lawyer
talk to you," get their contact information, and hang up.
People often ask me if refusing to talk to the Plaintiffs
is "evidence of guilt."
"Won't it make me seem guilty if I have my lawyer
talk to them?"
First of all, while the music industry is doing a good
job of seeming like law enforcement in these downloading cases, they
aren't, and you don't owe them any explanation at all. Second,
there's only two entities who determine guilt in a civil case: a judge,
or a jury. Both will only think you're being sensible by having your
lawyer handle your legal concern.
If you are caught up in a case like type #2, don’t
ignore the Summons, re-read all the above points about not talking to
the Plaintiff's representatives, get a lawyer, and make sure you thoroughly
review the evidence. How will you know if you're in a #2-type case?
See the nice little (name blocked out to not identify the Defendant)
Summons I sent along with
this article, downloaded fresh off our Federal District Court web site.
And of course, in both types of cases, the Plaintiff will
demand thousands of dollars to "settle it amicably."
The bottom line: File-sharing is illegal, but it's important
to know your rights and not to just roll over. When you get sued civilly,
the burden of proof is lower (think OJ criminal case vs. OJ civil case),
but the Plaintiffs still have to prove the case they brought (or were
allowed to amend it to). Capitol Records can't sue you for sharing a
song they aren't licensed to distribute. You have a valid (albeit uphill)
defense if hackers invaded your computer and used it to store songs
you couldn't care less about. The Statute of Limitations (the deadline
to file a case) is relevant, too.
If you get sued or otherwise contacted in relation to
a file-sharing case, be your own forensic scientist: get the facts,
analyze the minutia, and make sure they have the right person. The courts
are bloated with these cases right now, and if you handle things properly,
yours won't go "pop."
Stephanie Cole is an attorney in Buffalo. She knows
next to nothing about forensic science but she has handled a few copyright
cases in her day. For up-to-the-minute information about file-sharing
cases, she recommends you visit the Electronic Frontier Foundation at