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bittorrent copyright defense

BitTorrent Copyright Defense

By Eric Misterovich

BitTorrent Copyright Defense

Few things are more frustrating than being sued for something you were not aware was happening and did not do. Unfortunately, this is the situation that many individuals or business owners find themselves when they receive a letter from their Internet Service Provider (ISP) informing them that they are the subject of a copyright lawsuit.

Here is what you need to know about these cases and what your options are.

How BitTorrent Works

BitTorrent is a method for sharing and downloading large files online. There are a number of different BitTorrent programs out there, but they all work by breaking up large files into “bits.”

If you download this file, instead of receiving it from one source, you receive various “bits” from several other computers that have the same file. This lets large files be shared quickly among multiple people.

BitTorrent itself is not illegal – many companies use various protocols to share files internally or to make open source software available to the public.

However, not every file is shared across BitTorrent platforms with the permission of the copyright owner. Movies, books, songs, and television programs are often shared illegally.

Some copyright holders may ignore these downloads, or – as HBO does for Game of Thrones downloaders – send letters requesting that the activity stop. However, others take a much more aggressive stance.

Copyright “Trolls”

Copyright holders who are extremely aggressive in enforcing their copyrights in court are known as copyright trolls.

Although activity online, including downloading movies, television shows, or songs, seems to be anonymous, it is not. Copyright trolls are able to trace the IP address of the user completing the download. The IP address can translate to a physical address and an internet service provider.

With this information, copyright trolls are able to file a complaint in court and ask a judge to issue a subpoena ordering the ISP to turn over the identity of the account-holder. Even if the account-holder is not the person doing the downloading – a very real possibility – this person likely has information about whom the downloader is likely to be.

While this may seem like a fair and logical way to proceed, copyright trolls are infamous for spamming the federal court system with hundreds, if not thousands, of lawsuits at any given time. Some plaintiffs, such as Malibu Media, will sue only one defendant at a time, but others will file lawsuits against dozens of people at one time.

Because it is not humanly possible for these companies to proceed with every lawsuit against every defendant, it is becoming increasingly obvious to judges that these plaintiffs are only looking for quick settlements and to move on to the next victim. One judge issued harsh criticism of this practice last year, saying that the plaintiffs are treating his courtroom “like an ATM.”

In addition to Malibu Media, Strike 3 Holdings has also been actively filing copyright lawsuits in recent months. Both own copyrights to adult material, so the embarrassment factor of being associated with this type of case can encourage people to settle who may be otherwise inclined to fight.

Defending Against a Copyright Troll

If you are dealing with a copyright troll in court, you may be able to raise a number of defenses to fight the claims.

Someone Else is the Infringer

If you know for a fact that someone else did the infringing activity, you may be able to turn this person over to the copyright troll in order to redirect focus from you. However, this can be tricky because you may not want to throw a family member or an otherwise good employee to the mercy of the plaintiff. Occasionally in this situation, the person who actually did the downloading will agree to pay a settlement in order to avoid the risk to both the account-holder and themselves.

The Case was Filed in the Wrong Jurisdiction

In order for a lawsuit to proceed, the case must be filed in the proper jurisdiction. If you have never set foot outside of Michigan, you can not be sued for copyright infringement in Ohio.

Although copyright trolls claim that their methods of determining the location of the infringing activity is highly accurate, this is not necessarily the case.

If you are involved in a copyright lawsuit that was filed somewhere other than where your home is located, you may be able to have the case dismissed for lack of jurisdiction.

The Case was Filed After the Statute of Limitations Expired

A copyright holder must bring a lawsuit within three years; otherwise, they can not bring the case. If a copyright holder attempts to sue you for downloads they claim occurred more than three years ago, the judge can dismiss the case because the troll waited too long.

Settling the Case Outside of Court

Although it is not the answer for everyone, sometimes settlement can be the best option if you are being sued by a copyright troll. If you know that you were the one who did the downloading, you may decide to settle rather than risk paying attorneys fees and statutory damages for infringement.

You may also decide that you do not want any potential negative publicity for your company or yourself. While some judges will allow copyright defendants to proceed anonymously if the copyrighted materials are adult in nature, not every judge will. Rather than take the risk, some people will decide it is in their best interests to settle quietly outside of court.

Preventing Copyright Lawsuits

The best way to protect yourself from being faced with a copyright troll lawsuit is to limit the number of people who can use your WiFi. If this is not possible due to business requirements, you should educate your employees about using the internet responsibly and enact policies designed to prevent this kind of unauthorized use with company materials.

This article is for informational purposes only and does not contain legal advice. If you are being pursued by a copyright troll or have questions regarding  copyright infringement, or other intellectual property matters, contact our experienced Internet Attorneys today with the form on this page, or call us at 855-473-8474.

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