Planning Your Defense
Read the allegations against you. You may be unaware that you've done anything wrong. In fact, you won't know that someone believes you have illegally downloaded material until you receive a legal document. You should read this document closely. Criminal complaint. The government can bring criminal charges for copyright violations. If you are charged, you will probably be arrested and served with a criminal complaint. However, criminal prosecutions are rare. Instead, you will likely be sued by the copyright holder in a civil action. Demand letter. This letter (also called a “settlement letter”) is usually written by an attorney. The attorney demands that you stop downloading copyrighted work. The attorney also suggest settlement and typically threatens to sue if you don't. Civil complaint. Some people might immediately sue you and skip the demand letter. In this situation, you will receive a complaint, which will probably be hand-delivered to you along with a “summons.” The summons tells you when you must respond to the lawsuit.
Analyze any demand letter closely. You probably will receive a demand letter. You should look at it closely because it contains important information. This information will help you plan your defense. Pay attention to the following: Who sent you the letter? If you received it from a law firm, then the lawyer knows your identity and can sue you in court. However, if your Internet Service Provider (ISP) sent you the letter, then the law firm doesn't yet know who you are and can't typically sue you. Instead, the law firm has to send a subpoena to the ISP requesting that they turn over your name. Are other people being sued? Filing these kinds of lawsuits has become big business for some law firms. For example, one law firm sued over 20,000 people for illegally downloading the movie “The Hurt Locker.” These law firms typically are hoping to get most of the people sued to settle for around $1,000-3,000—a nice chunk of money for the law firm. Once you receive the demand letter, you should check online to see if others have been sued for downloading the same files. If so, then the law firm might not be very aggressive in coming after you since you are one of thousands. Who is the law firm? Some law firms give themselves impressive sounding names, such as “U.S. Copyright Group.” This is not part of the government. Part of the strategy for these law firms is to scare you into thinking you might go to jail for downloading files. However, only the government can put you in prison, and if the government is prosecuting you then you probably will already be arrested. What are the deadlines? The letter should tell you when an ISP will turn over your identifying information. The letter may also give you a deadline for negotiation.
Identify your possible punishment. Piracy is a serious problem around the world, and you face severe consequences if a court finds that you are responsible. For example, a court could order the following, depending on whether the case is criminal or civil: Jail time (for criminal charges). Jail is pretty rare, but the U.S. copyright law allows you to be jailed for up to 10 years depending on the offense. Criminal fines. U.S. copyright law also allows the government to fine you up to $250,000. You might have to pay fees in the place of jail time or in addition to jail time. Statutory damages. If you are sued in a civil lawsuit, you may have to pay $750-30,000 per illegal download. If you violated the law “willfully,” then you may have to pay up to $150,000 per download. However, if you can prove that you had no idea you were illegally downloading copyrighted material, you can get the amount reduced to $200 per download. Actual damages. The copyright holder might instead seek “actual damages.” This is the amount of money your illegal download actually cost the copyright holder, as well as your profits for illegally downloading and distributing the work. Typically, actual damages are hard to prove, so most people sue for statutory damages. However, the law allows them to seek actual damages if they can prove them.
Avoid settling immediately. You might feel bullied into settling in order to make the case go away. Many lawyers try to get you to pay $1,000-3,000 with the promise that they will dismiss the lawsuit if you pay. You should avoid immediately settling. Instead, you should meet with an attorney and discuss your case. You may have a valid defense to the charge. Admittedly, you might ultimately settle. However, you shouldn't settle right off the bat because you are scared.
Meet with a lawyer. You need to see a lawyer immediately, regardless of whether you are being sued for criminal or civil copyright violations. A lawyer can advise you about your rights and help you understand your best options. The Electronic Frontier Foundation maintains a list of attorneys, organized by the state where they practice. You can look at this list and contact an attorney who practices in the state where you are being sued. If you can't afford an attorney, then look for a pro bono attorney. Also contact a nearby law school. Many law schools have volunteered time to help in these kinds of lawsuits. Should you be prosecuted for criminal piracy, then you will need a criminal defense lawyer. You can find one by contacting your local or state bar association and asking for a referral.
Keep your identity secret, if possible. You might receive a demand letter from your ISP and not from a lawyer directly. This happened because the copyright holder knows your ISP address but doesn't yet know your name. Your ISP also has not turned over your name—and might not, unless ordered to do so by a court. You should maintain your anonymity because copyright holders cannot sue ISP addresses. Instead, they need to sue people. As long as the copyright holder (or their lawyer) doesn't know your identity, you can stay out of court. If you want to communicate with the copyright holder, you can maintain your anonymity by communicating through your attorney. This is another reason hiring an attorney is helpful.
Identify who else had access to your ISP address. One defense you can raise is that someone else used your ISP address to download the material. Obviously, this will be a hard argument to win if the material is found downloaded on a computer you own or control. However, think about the following: Does someone else have access to your wireless Internet? For example, an old roommate might have used it. Write down the dates they were living with you. Generally, you are responsible for keeping your wireless secure. However, this could be a possible defense depending on the circumstances. Did someone stay at your home and use your computer? If so, this person could have downloaded the material. Look for evidence (such as emails, photographs, etc.) that show the person stayed at your home and the dates. However, you should realize that if your children or anyone living with you downloaded the files, then they can be sued as well.
Check if you have a “fair use” defense. Under copyright law, you can avoid statutory damages if you are an employee of a library, archive, or nonprofit educational institution and you downloaded the material in the scope of your employment. A fair use defense also exists for a public broadcasting entity or an employee who transmits a performance of a nondramatic literary work. Talk with your lawyer about these and other fair use defenses.
Settling a Civil Dispute
Identify a reasonable settlement amount. The amount you will have to pay in a settlement is almost always much lower than the statutory damages amount. For example, most people settle for between $1,000-3,000, with $750 being the minimum fine for statutory damages. If you go to court and lose, you could end up paying substantially more in statutory damages.
Discuss settlement with your attorney. Your lawyer can help you understand whether settlement is ideal for you. Settling is often the ideal solution for those people who are guilty. However, there are many factors you need to consider: Will you be sued if you don't settle? Lawsuits are time-consuming. Also, there is no guarantee that the plaintiff will win. Do you have solid evidence of your innocence? There's no reason to gamble with a lawsuit if you don't have a solid defense. Do you need the lawyer's help to settle? Typically, you can negotiate on your own. However, a lawyer can often get a better deal for you. When should you settle? Sometimes, it is better to settle before the copyright holder files suit. In other situations, you might want to wait for the case to develop.
Negotiate with the copyright holder's lawyers. If you decide you'd like to settle, then you should reach out to the attorney who sent the demand letter. Each negotiation is different. Generally, the lawyer will probably negotiate through letters. Don't feel like you need to accept the copyright holder's first offer. For example, if they suggest $3,000, then counteroffer with $200. Claim that you are completely innocent and this is all they will get in a lawsuit. You can then negotiate back and forth.
Get a release. As part of the settlement, you should get a “release.” This is an agreement not to sue you in the future based on your illegal download. In other words, you get the release in exchange for paying the settlement amount. Even if you negotiated on your own, you should have your lawyer look over the agreement so that you are protecting your rights.
Navigating the Civil Litigation Process
Refuse to respond to the lawsuit. One strategy is not to respond to the lawsuit. If you are arrested for criminal piracy, then you don't have that option. However, if you are sued civilly for illegal file-sharing, then you have the option of not responding. Talk with your lawyer about the consequences. For example, the copyright holder might get a “default judgment” against you. The amount can vary. However, in one case, the defendants were only charged $750, which is the minimum statutory fine. In another case, though, the defendants had to pay $20,000 as a default judgment, so this isn't a fool-proof strategy for avoiding a large judgment against you.
File a motion to quash the subpoena. Your lawyer might decide that it is better to challenge the subpoena that the copyright holder issued your ISP. The purpose of the subpoena is to find out your name. You could argue that the subpoena is defective in some way, or that your information is protected by confidentiality laws. You would ask the judge to “quash” the subpoena. Motions to quash often fail. However, they are very fact-specific, and only your lawyer can tell you whether a motion to quash is worthwhile in your case. If you do file a motion to quash, you should have a lawyer do it for you. If you file the motion yourself, then you're identifying yourself to the plaintiff, which defeats the whole purpose of fighting the subpoena in the first place.
Draft a motion to dismiss. Your lawyer might also draft a “motion to dismiss” in response to a civil complaint. This motion asks the judge to dismiss the lawsuit for some reason. Typically, you can bring a motion to dismiss for the following: The plaintiff sued in the wrong court. For example, you may live in Michigan. However, the copyright holder sues you in California. If you have no contacts with California, then you can get the case dismissed because the California court does not have “jurisdiction” (power) over you. The copyright holder then will probably have to file suit in Michigan. If this is too much of a hassle, then you can effectively win the case. The plaintiff didn't serve the lawsuit properly. There are specific methods for properly notifying you of the lawsuit. If the plaintiff didn't follow them, you can have the case dismissed. The plaintiff hasn't made out a valid claim. Copyright infringement complaints can't be based on vague allegations or conclusory statements. If the plaintiff didn't allege specific and particular acts, then your lawyer might get the case dismissed. The statute of limitations has expired. A copyright holder must bring a lawsuit within three years. If they wait too long, you can often raise this in a motion to dismiss.
Respond to the lawsuit. You might also answer the lawsuit. This means that you respond to each allegation made in the complaint, admitting or denying each allegation. Your lawyer may advise that you fight the lawsuit, especially if you are innocent. In order to win, the plaintiff must show that it is more likely than not that you downloaded the files. They have the burden of proof of connecting you (and not just your ISP address) to the illegal download. You should talk to your lawyer about how long the lawsuit can take. There is a long fact-finding phase called “discovery,” during which the plaintiff can request that they look at your computer and study your Internet viewing habits. Many people find discovery very invasive, so you don't want to agree to fight the lawsuit unless you fully understand all that a defense entails.
Take part in discovery. Soon after your answer is filed, litigation will enter a pretrial stage called discovery. During discovery, you will be able to collect facts, interview witnesses, learn what the other side is going to say at trial, and see how good your case is. In order to conduct discovery, you will be able to use the following tools: Depositions, which are in person interviews with parties or witnesses. These interviews are conducted under oath and answers can be used in court. Interrogatories, which are written questions posed to parties or witnesses. These questions must be answered under oath and they can be used in court. Requests for documents, which are formal requests asking the plaintiff to hand over documents relevant to the case. This is your opportunity to ask for employee manuals, terms and conditions, emails, and text messages. Requests for admissions, which are written statements the plaintiff will be required to admit or deny. These admissions help both parties focus on what is truly at issue in your case.
File a motion for summary judgment. When discovery concludes, assess the strength of your case and think about trying to end the litigation before trial. If you have a strong case, you should file a motion for summary judgment which, if successful, would end the litigation immediately and provide a ruling in your favor. To be successful, your motion must persuade the judge that there are no genuine issues of material fact and that you are entitled to judgment as a matter of law. In other words, you will have to prove that, even if every factual assumption was made in plaintiff's favor, they would still lose the case. Your motion should be accompanied by evidence and affidavits to back up your claims. The plaintiff will try to defeat your motion by filing one of their own. Their motion will try to persuade the judge that facts are in dispute and should be resolved at trial.
Attempt to settle. If your motion for summary judgment is unsuccessful, you might want to settle your case. In general, going to trial is expensive and time consuming. Most plaintiffs (and defendants) will try to settle at this stage to avoid the burden of trial. Start by having informal discussions with the plaintiff. Sit down with them in a conference room and hash out your differences. If informal discussions do not succeed, offer to take part in mediation. During mediation, a neutral third party will sit down with both parties and discuss common ground and unique solutions. The mediator will not take sides and will not offer their own opinions. If mediation stalls, try non-binding arbitration. During arbitration, a judge-like third party will listen to each party present evidence. After the presentations, the judge will draft an opinion, which will lay out who has the stronger case, who they think would win, and what possible damages could be. You and the plaintiff may either choose to follow the arbitrator's opinion or you may reject it.
Go to trial. If no settlement is reached, you will go to trial. At trial, the plaintiff will present their evidence first. They will be responsible for proving, by a preponderance of the evidence, that you illegally downloaded copyrighted material. After each of the plaintiff's witnesses is questioned by the plaintiff, you will have an opportunity to cross-examine them. During cross-examination, you will try to poke holes in the witness's testimony. Once the plaintiff rests, you will have your chance to present evidence. Your evidence, in the form of witnesses testimony and physical evidence, will need to poke holes in the plaintiff's case and try to show that you did not do anything against the law. Once all of the evidence has been heard, the judge or jury will deliberate and come to a decision. If you successfully defend yourself, you will not be liable to the plaintiff and you will not have to pay any damages. If you lose, ask your lawyer about appealing. In order to appeal, the judge in your case must have made some legal error that affected the outcome. If you choose to appeal, you need to do so quickly by filing a notice of appeal with the court.
Defending Yourself in Criminal Court
Hire a criminal lawyer. Civil lawyers will not be a big help if you have been charged with a crime. You will know if you have been charged with a crime if you have been arrested, read your Miranda rights, or have been arraigned. As soon as you recognize that you may be charged with a crime, you need to hire a qualified criminal defense lawyer. Criminal defense lawyers will be able to work with prosecutors, navigate the criminal justice system, and represent you in court. If you do not know any criminal lawyers, contact your state bar association's lawyer referral service. After answering a few questions about your legal troubles, you will be put in contact with multiple lawyers in you area.
Participate in plea discussions. Depending on the strength of your case, your lawyer might suggest pleading out and avoiding trial. However, if your case for innocence is strong, you might not want to participate in plea discussions. Plea discussions can be formal or informal depending on the type of case you are involved in and the complexity of it. Simple plea deals can be discussed in hallways and finalized within hours. In other cases, plea discussions can take days of back-and-forth. The bargaining will take place between your lawyer and the prosecutor. Your lawyer will try to get the prosecutor to reduce the charge or the sentence in exchange for a guilty plea. Once a deal has been proposed, you will be the one to decide whether to accept it. Your lawyer cannot do this for you. If you accept a plea deal, the prosecutor will present it to the judge. It will then be up to the judge to decide whether to allow it. If the judge signs off on the plea deal, it will be finalized.
Follow any court orders issued. If you have decided to plead not guilty, your lawyer and the prosecution will take part in various pretrial hearings. During these hearings, the judge will decide, among other things, whether you should be released from jail or stay while you await trial. If you are released pending trial, you need to make sure you follow any court orders the judge has issued. In your type of case, the judge might require you to avoid computers or other devices that could be used to download copyrighted materials. You may also be required to submit to random searches to ensure you are following the rules set out for you. No matter what the court order is, do not disobey. If you fail to follow the rules, you may end up back in jail awaiting trial.
Decide whether to testify. As a criminal defendant, you have the constitutional right to avoid self incrimination. This means you do not have to testify at your criminal trial. Before your trial begins, talk with your lawyer about the positives and negatives of getting on the witness stand. For example, testifying may help you clear up confusion about certain pieces of evidence or statements you may have made outside of court. In addition, some jurors may expect you to testify if you are innocent (i.e., jurors may think, "If you are innocent, why wouldn't you be willing to testify?). However, when you testify you open yourself up to cross-examination. During cross-examination, prosecutors can raise issues and have discussions that would otherwise be inadmissible (e.g., prior inconsistent statements and convictions). In addition, some jurors assume criminal defendants are lying when they take the witness stand.
Go to trial. When your trial begins arrive early and dress professionally. While your attorney is trying to fight for your freedom, you are also putting on a show for the court. Jurors and judges will notice your appearance and take note of it. While evidence is being presented, remain calm and never speak unless you are testifying. Allow your lawyer to do their job and represent you. When the trial is over, the jury or judge will deliberate and come to a final decision. If you win, you will be found not guilty and you will not have to deal with the charges again. If you lose, you will be sentenced to jail time, prison time, probation, or maybe you will just have to pay a fine. If you do not agree with the outcome of the trial, you may be able to appeal. Talk with your lawyer if you think this might be an option.
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