BitTorrent Suit: Fathers and Daughters Case in Michigan

Fathers and Daughters Nevada has filed suit in the Eastern District of Michigan (Fathers and Daughters Nevada, LLC v Does 1-15, Case No. 2:16-cv-10372) against fifteen John Doe defendants (Does 1-15) who they believe have illegally copied and distributed its copyrighted work, the movie “Fathers and Daughters,” via bit torrent sites. The defendants, who haven’t yet been named, are either physically located in Michigan or are believed to have sent the work to users who are physically located in Michigan. In its suit, Fathers and Daughters Nevada has acknowledged that it does not know the true identities of the defendants, but argues that during the course of the suit, the defendants’ identities will come to light.

What Is This Lawsuit?This type of lawsuit might look strange at first, but it’s becoming more and more common for a movie producer or production company to sue a number of anonymous “John Doe” defendants, and then serve a subpoena on several Internet Service Providers (ISPs) to find out the identities of subscribers who have downloaded or transferred the producer’s content illegally. The producer will then either attempt to force individual settlements with the subscribers, or will bring a specific individual into a larger copyright infringement lawsuit.

How to Respond?

If you are implicated in a lawsuit like this, the best first step is to get as much information as you can. A simple Internet search will reveal a great deal of general information about this type of lawsuit. Next, consult an attorney who’s experienced in dealing with issues like yours: while the Internet is great for research and finding out general information, it cannot answer specific questions about your particular case.

Will My ISP Disclose My Information?

If your ISP is served with a subpoena, it will release your information in response. In order to prevent the disclosure of your information, you must either file a motion to quash the subpoena or confidentially settle the matter prior to the deadline provided by your ISP. In either case, having an attorney by your side will make the process much easier.

Revision Legal Has Experience Defending Copyright Infringement Lawsuits

Revision Legal is an intellectual property law firm that regularly litigates and negotiates copyright infringement cases. We understand that each case is different and strive to achieve the best result for each individual, whether that means settlement or actively fighting the case.

To contact Revision Legal’s experienced copyright attorneys, simply complete the form on this page or call 855-473-8474.

Image credit to Flickr user mricon

How BitTorrent Copyright Litigation Works

The “Fathers and Daughters” lawsuit is representative of a litigation model that has become common in copyright enforcement: a rights holder files suit against a large number of anonymous defendants identified only by IP address, then uses discovery to unmask their identities before deciding whether to pursue individual claims or negotiate settlements. Understanding the mechanics of this model is essential for anyone who receives correspondence suggesting they have been named in such a suit.

The rights holder’s first step is to capture IP addresses associated with unauthorized distribution of its content using a BitTorrent monitoring service. Each IP address corresponds to an internet subscriber — not necessarily the person who committed the infringement, but the account holder under whose service the infringement occurred. The rights holder then files a John Doe lawsuit naming those IP addresses as defendants, and petitions the court for early discovery to subpoena the ISPs for subscriber information.

Courts have generally permitted this early discovery where the rights holder can show a plausible claim of infringement, a specific IP address tied to that infringement, and that the information sought — subscriber identity — is reasonably likely to lead to the identification of a defendant who can be served. The balance courts must strike is between the rights holder’s legitimate interest in enforcing its copyright and the internet subscriber’s interest in anonymous or pseudonymous activity protected by the First Amendment.

The IP Address Problem: Why You May Not Be the Infringer

A critical weakness in the BitTorrent litigation model is that an IP address does not identify a person — it identifies a network connection. The subscriber named in the ISP’s records may be a homeowner whose Wi-Fi was used by a guest, a renter whose landlord holds the ISP account, an employer whose employee downloaded content on a work network, or any of dozens of other scenarios in which the account holder and the infringer are different people. Courts have increasingly recognized this limitation.

In Malibu Media, LLC v. John Does 1-6 and similar cases, courts in several circuits have held that an IP address alone is insufficient to establish a prima facie case of copyright infringement and have denied early discovery in cases where the rights holder could not provide evidence beyond the IP address. Even where discovery is permitted and the subscriber is identified, the rights holder must still prove that the subscriber — not some other person using the same connection — performed the allegedly infringing download or upload.

Copyright Infringement Liability and Potential Damages

If you are found to have infringed a copyright through BitTorrent activity, the potential damages are substantial. Under 17 U.S.C. § 504, a copyright owner can elect to receive either actual damages plus the infringer’s profits, or statutory damages. Statutory damages range from $750 to $30,000 per work infringed, and for willful infringement — which courts have found includes downloading content with knowledge of copyright protections — up to $150,000 per work. In a case involving a single film, statutory damages can reach $150,000 plus the rights holder’s attorney’s fees under 17 U.S.C. § 505.

Rights holders in BitTorrent cases typically do not pursue the maximum statutory damages. Instead, they use the threat of substantial liability to negotiate settlements in the range of $1,000 to $5,000 per defendant. Many defendants choose to settle rather than incur the cost of litigating a copyright case, even when they have valid defenses. This settlement pressure is a central feature of the litigation model — and it is why having an attorney evaluate your specific situation before responding to any settlement demand is critical.

Moving to Quash the Subpoena

When an ISP receives a subpoena seeking subscriber information in a BitTorrent copyright case, it will typically notify the subscriber and provide a deadline by which the subscriber may object. Filing a motion to quash the subpoena — or joining with other named defendants in a motion to quash — is the primary procedural mechanism for protecting your identity. A motion to quash can succeed on several grounds: the subpoena was not issued by a court with jurisdiction over the subscriber; the rights holder failed to demonstrate a plausible infringement claim tied to the specific IP address; or the early discovery was obtained through a procedurally improper process.

Even where a motion to quash is unlikely to succeed on the merits, filing it preserves your right to challenge the litigation and can give your attorney time to evaluate whether a confidential settlement is preferable to continued litigation. Ignoring the ISP’s notification and allowing the deadline to pass without objection forfeits your opportunity to challenge disclosure before your identity is revealed.

If you have been notified by your ISP that your account information has been subpoenaed in a copyright infringement lawsuit, or if you have received a settlement demand letter from a rights holder in connection with BitTorrent activity, Revision Legal’s copyright attorneys can evaluate your situation and advise you on the best course of action. Contact us through the form on this page or call 855-473-8474.