We talk a lot about national and international copyright laws a lot, but one of the issues that receives less attention is how individual users can deal with legal threats by rights holders whenever they, say, get caught uploading copyright infringing material. Adam Urbanczyk, Principal Attorney of TorrentLitigation.com wants to be a solution for users who end up getting targeted by rightsholders. We interviewed him.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
ZeroPaid.com (ZP): Hello and welcome Adam Urbanczyk to ZeroPaid. First, tell us a little about yourself and the general idea about your website.
Adam Urbanczyk: Thank you. I’m an attorney here in Chicago whose practice consists of generalized business and intellectual property-related transactional matters, often those faced by startup and newly-established enterprises. We help our clients’ businesses get off on the right foot, so to speak, and help them secure whatever patent, trademark, copyright, or trade secret-protectable assets they have developed or are in the process of developing. TorrentLitigation.com started as an effort rather-tangential to our practice, though over the course of time it has become a central activity. TorrentLitigation.com is designed to be a portal through which individuals involved in, or just curious about, file-sharing or website “hacking” cases can read the complaints at-issue and familiarize themselves with the claims therein. While maintaining and adding-to the library is somewhat expensive, we believe it helps relieve the demonstrated confusion over these cases. Furthermore, we strive to treat these cases — and a potential client’s options in the face of a subpoena notification letter or demand letter — as objectively as possible. Vitriol and fear-mongering we leave to others.
ZP: One of the perceptions about file-sharing litigation for years has always been that it’s about the equivalent to getting struck by lightening. Sure it happens to people from time to time, but the chances of actually getting a legal threat is incredibly slim. Is there any truth to that perception from what you’ve seen?
Urbanczyk: Statistically, the chances of receiving a legal threat for the average file-sharer are incredibly slim, though there are certain file-sharing activities which can greatly increase the odds of “getting something in the mail.” The incredibly-slim odds are mostly due to the vast number of file sharing participants and relatively-thin slice of content whose rights holders are willing to go to court. Wholesale, multiple John Doe copyright infringement or “hacking” cases almost invariably involve adult content. Two notable exceptions were the films Hurt Locker and The Expendables.
ZP: One of the major problems I’ve personally noticed is that while it’s all well and good that some people can familiarize themselves with copyright law, it’s a whole different thing to have the general population (who could go out and engage in file-sharing) familiarizing themselves with copyright laws. Is that a problem that could ever be overcome and what would be some critical points about copyright laws that the average person should know if or when they consider going out and engaging in file-sharing activities?
Urbanczyk: I do not believe that some fundamental misunderstanding of copyright law is, technically, the problem. The vast, vast majority of file sharers are completely aware of the fact that their getting-something-for-nothing, especially in the context of using Bit Torrent protocol, is at best “not right” and at worst abject copyright infringement. We are safely beyond whether file sharing can be a violation of the exclusive rights afforded to authors under the Copyright Act; the activity persists mostly because rights holders are, generally, loath to enforce their rights against anonymous internet users and the odds of file sharers encountering any legal problems are consistently remote. For those few individuals who truly have no idea that their file-sharing is illegal — despite the non-insignificant effort involved in downloading Bit Torrent client software, searching for and downloading a .torrent seed file of the work in question, and then loading the seed file into the client software, for example — those individuals’ ISPs hopefully have excessive bandwidth notification protocols in place.
ZP: When someone receives a legal notice about copyright infringement over the Internet, sometimes the first thing people do is panic. First of all, does the first appropriate reaction depend on the kind of legal notice that an individual receives? Since there is no shortage of people who don’t really have much money to begin with, at what point should those individuals start to consider a lawyer? Is it when, say, the rightsholder in question demands settlement money or is it when the individual receives a court summons or when is it a good idea to start seeking legal advice?
Urbanczyk: The panic is understandable as many people are largely unfamiliar with legal instruments; however, there are probably three types of “notice” a subscriber can receive. The first (and theoretically best) notice would be from the ISP wherein it informs the subscriber that suspicious activity has been detected on the subscriber’s account and that the subscriber needs to secure his wireless router, police those who are using the subscribers account with permission, or simply stop engaging in the activity himself. This is basically an early warning, though compliance with this notice does not preclude liability for what may have already occurred. Consulting an attorney at this stage is probably not necessary.
The second notice, usually, would also be from the ISP in reaction to a subpoena the ISP has received from a plaintiff who is looking to obtain information related to the subscriber’s identity. I say “usually” because this notice does not always come, especially in smaller markets. Consulting an attorney at this juncture is advisable because the subscriber will have, usually, a two/three week window in which to make some outcome-determinative decisions based on the case and claims in questions and the subscriber’s potential liability, financial exposure, and tolerance for risk. It is important to note that despite the plaintiff counsel’s contact information appearing in the subpoena, the subscriber should refrain from contacting them.
The third, sometimes second, notice would be from an attorney’s office wherein the attorney invariably states that: 1) a complaint has been filed based on certain claims; 2) the subscriber’s IP address, at a certain time, was tracked engaging in the alleged offending conduct; and 3) in exchange for the plaintiff’s release of its claims against the subscriber, the plaintiff will accept a few or several thousand dollars. These notices are often followed by phone calls of the same intent. A subscriber receiving this correspondence should of course contact an attorney.
It goes without saying that a subscriber should seek legal assistance in the event he is served with summons and a copy of a complaint. There is also plenty of research to be conducted about these cases online; however, many of the immediate issues facing John Does (or just subpoena notification letter recipients) are inconsistently treated across jurisdictions and the polarized blogosphere can lead to more confusion.
ZP: In previous file-sharing cases in the US, namely the Joel Tenenbaum case and the Jammie Thomas case, I’ve noticed that the courts are seemingly more and more transfixed on saying that when someone is sued for distributing copyrighted material, the benchmark is set at $2,250 per song. To my knowledge, this kind of fine has been appealed, but can we more or less safely say at this point that the chances are good this will become the litigation benchmark set by the courts (save for another change in copyright laws by the government) or is it too early to tell even now that this is the standard amount? Also, should something like this be something to consider when trying to decide what to do if they get a legal threat?
Urbanczyk: The term “benchmark” is probably less accurate than “guidepost.” Indeed, the Court of Appeals for the First Circuit reinstated the original $675,000 award (i.e., $21,774.19 per song, albeit subject to the United States District Court for the District of Massachusetts for remittur considerations) in Tenenbaum, and the Court of Appeals for the Eighth Circuit only recently heard oral argument on the damage award in Thomas. The lower court in Thomas, and vicariously the lower court in Tenenbaum, derived their damaged-reducing reasoning from St. Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919), so while there seems to be the beginning of a multi-jurisdictional framework, the cases’ status prevents any armchair valuations of particular claims. Of course, Tenenbaum and Thomas dealt with sharing music files, whereas most file-sharing litigation now involves films and, to a much lesser extent, software: an easy point of distinction to be made by any plaintiff looking to argue around Tenenbaum and Thomas precedent.
The prospect of ultimately being found liable is a consideration to be made by any potential defendant. Restricting litigious variables and for the sake of example — John Doe defendant, guilty of activity alleged in complaint, plaintiff’s work appropriately registered to allow plaintiff to elect statutory damages, etc. — even a Williams-based minimized damage amount would be, after litigating for months, more than for what the John Doe may be able to settle or quash the subpoena in question. Depressingly, plaintiff attorneys are aware of the economics of the matter.
ZP: One case you mentioned in these e-mails showed that a porn company tried to litigate the owner of a Wi-Fi hotspot even though the person who was responsible had aready been targeted. My knowledge of US copyright law – especially in context to the MGM v. Grokster case – says that if a service advertised that one could download infringing copyrighted material in an effort to try and expand their userbase, then that service wouldn’t qualify for any DMCA safe harbour provisions. While that applies to things like file-sharing applications in the US, can the same be said for people who own a Wi-Fi hotspot?Also, if someone receives a legal notice for copyright infringement even though they didn’t actually, say, download that copyright infringing file, what are the options for that person? Do they respond to say that it wasn’t them that was responsible for that activity? Do they tell the copyright owners who really did the infringing activities? Is the best course of action to simply ignore the notice altogether?
Urbanczyk: The owner of a Wi-Fi hotspot can be considered an ISP under the definitions provided in the DMCA, and thus a WiFi hotspot owner would be able to enjoy the safe harbor provisions the DMCA provides assuming the owner abides by the appropriate notice and takedown obligations. Any WiFi hotspot owner that advertised the use of its network for infringing purposes would have a difficult time enjoying safe harbor under the DMCA or avoiding liability for contributory or vicarious infringement should those claims arise.
It must be said that most John Does and subpoena notification letter recipients are not personally responsible for the complained-of activity; rather, they are merely internet account holders victimized by resident downloaders or neighbors hopping onto unsecured wireless networks. Whether or not a subscriber is responsible for the claimed activity, when faced with such notification there are a small handful of ways he may address the matter: 1) ignore the letter and the subsequent correspondence from plaintiff’s counsel, as described above, in the hopes that the plaintiff does not name the subscriber as an individual defendant sometime in the future; 2) attempt to quash to the subpoena sent to the subscriber’s ISP, should the ISP’s compliance with the subpoena remain outstanding; or 3) reach a preemptive settlement with plaintiff. There are benefits and drawbacks to each path forward and there is no one-size-fits-all-subscribers solution.
Liberty Media Holdings, LLC is testing various strategies (see also Arte de Oxaca, bringing a negligence claim (PDF))
ZP: There has been, at least in my opinion, a troubling trend where DMCA notices have been used for stifling free speech online. Sometimes it’s a bad review that receives a takedown notice when it was a clearly not infringing on copyright. A lot of the time, it’s been YouTube video’s that are mistakenly targeted for a takedown notice. Say, for instance, I have a video on YouTube that simply shows me ranting about how much I didn’t like a Drake album and it gets taken down from YouTube due to a DMCA complaint. What sort of questions should I be asking myself in deciding whether or not to send a counter-notice and can an average person use a general set of criteria to decide on sending a counter-notice?
Urbanczyk: The DMCA provides for damages, costs, and fees in the event a notification or counter-notification contains material misrepresentations. (17 U.S.C. § 512(f)). Assuming one is not making any such misrepresentations, one should not feel insecure about providing YouTube a good faith counter-notice. Of course, YouTube, as the service provider, can rather easily avoid liability with its own “good faith” assessment over whether the complained-of content is infringing.
ZP: Another unfortunate trend that I’m aware of is the rise of ransom-ware. There have been cases where hackers/fraudsters/script kiddies/etc. would manage to upload a program onto a victim’s computer which tells them that authorities have detected their IP (Internet Protocol) address was used in downloading copyrighted material (or even child pornography) and that the victim has to send the attackers a certain amount of money to make any charges go away. Of course, the attackers aren’t who they say they are (be it the FBI, the RIAA, the MPAA, etc.) What would be some advice you’d like to share to users to determine whether or not the notice they receive is fake or not?
Urbanczyk: While some of our clients have expressed frustration with their computers being terribly infected, we do not understand ransom-ware as being a large contributor to the population’s overall file-sharing confusion. This being said, notifications which should be heeded will come from either a subscriber’s ISP or an attorney’s office. Some small-market ISPs notify their subscribers via email; however, a subscriber receiving such notice would be prudent to contact his ISP’s customer service department to verify the notice’s content.
ZP: Are there any general misconceptions about copyright laws you’d like to take on here (outside of what was already mentioned)?
Urbanczyk: One odd misconception we encounter is the notion that “copyright is dead.” While some metaphysical argument can be made that art belongs to all of us, the current state of file sharing litigation, in its wholesale form, should indicate to everyone that the notion that “copyright is dead” does not exist in the minds of those whose products are not purchased but are instead acquired through anonymous file sharing. An ancillary notion, more widely held, is that most adult content is “free.” This is probably due to the ocean of content which has been immediately available over the internet — via tube sites, Bit Torrent, or otherwise — for the past 15 years and a conflation of content which, in sample form, is provided with advertising support. It is really the oldest notion that carries: nothing in life is free.
ZP: So, talking a little about your work, are there file-sharing court cases you or your website are currently working on? What would be some key highlights from you or torrentlitigation with respect to file-sharing litigation and hacking charges? How do people get in contact with torrentlitigation and when should people get in contact with the team on your site?
Urbanczyk: In addition to monitoring all file-sharing cases on a national level, we are involved on a substantive basis, mostly recently, on two cases pending in the Circuit Court of Cook County, Illinois: Guava, LLC v. Case, and Arte de Oxaca v. Mullen. We are representing the named defendant in both cases. Guava represents a spiritual successor to the infamous 11-L-0683 Lightspeed Media case filed late last year in the Circuit Court of St. Clair County, Illinois which dealt with novel claims under the Computer Fraud and Abuse Act. Arte de Oaxaca is another strategic departure for adult film litigants as the plaintiff in that case is bringing negligence and aiding and abetting claims. We can be contacted directly through our website at www.TorrentLitigation.com (or at (312) 715-7312 or admin@torrentlitigation.com), and we are happy to answer the questions of individuals involved, at any stage, in this unfortunate plague of litigation.
We realize that plaintiffs and their counsels across the country learn from each others’ experiences in various jurisdictions, and Bit Torrent activity as a source of infringement claims is probably just the beginning. The amount of material available on tube-sites dwarfs the already-staggering amount of content available via torrents, and it is probably only a matter of time before claims related to streaming copyright protected content start appearing on dockets. Plaintiffs have already started going after the site owners themselves (PDF)
ZP: Would you like to add anything else?
Urbanczyk: An ounce of prevention — in this case, securing your wireless router, refraining from using Bit Torrent to download anything, and ensuring those to whom you provide internet access do the same — can save pounds and pounds and time, energy, anxiety, harassment, and money.
ZeroPaid thanks Adam Urbanczyk for taking the tim out of his busy schedule to answer our questions.
Drew Wilson on Twitter: @icecube85 and Google+.
