Important things to teach your kids about internet law – Torrent movie downloading can lead to a federal lawsuit and a demand for thousands of dollars.
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This blog discusses the potentially high cost of downloading and sharing copyrighted movies on the internet through use of torrent protocals. The entertainment industry and their attorneys can be very aggressive on these cases, and this could be costly to your household.
Kercsmar & Feltus demand letters in Arizona
One law firm that you may have received a demand letter from in Arizona is the law firm of Kercsmar Feltus. We have dealt with this firm on many occasions and have found them to be tough, but fair. They will consider mitigating circumstances, and potential defenses. If you recently received a demand letter, or an ISP notice of subpoena, call us for a free initial review. We can help with Federal Copyright cases across the United States subject to local court rules.
Cases cited for support of $7,500 copyright penalty
One thing I noted in a recent letter was a demand for $7,500 for ONE download of the movie (alleged to have been downloaded and saved in a “shared” folder for others to copy). Many people who call our IP firm ask us “really, that is crazy.” Their letter attempts to cite to two cases they say support this amount being sought (keep in mind the maximum statutory penalty for “willful copyright infringement.” is $150,000 per work) so that needs to be kept in mind. At any rate, here are the cases they may cite you and a briefing of the case holding:
LHF Productions vs. Watkins – 2:16-cv-00196-SRB ($19,965 alleged judgment against a Defendant). This case dealt with a London Has Fallen movie. I am not sure if this is the same case, but here is a video I did on one Arizona default judgement:
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BMG Music v. Tenenbaum 1:07-cv-11446 ($675,000 award for illegally downloading and sharing 30 songs). $22,500 per song
“This was a difficult and contentious case and the parties received a fair trial from an admirably patient and able district judge. We affirm the finding of liability against Tenenbaum and in favor of plaintiffs. We affirm the injunctive relief. We have, inter alia, rejected Tenenbaum's arguments that the Copyright Act is unconstitutional under Feltner, 523 U.S. 340, 118 S.Ct. 1279, that the Act exempts so-called “consumer copying” infringement from liability and damages, that statutory damages under the Act are unavailable without a showing of actual harm, that the jury's instructions were in error, and his various trial error claims. We vacate the district court's due process damages ruling and reverse the reduction of the jury's statutory damages award. We reinstate the jury's award of damages and remand for consideration of defendant's motion for common law remittitur based on excessiveness. If, on remand, the court allows any reduction through remittitur, then plaintiffs must be given the choice of a new trial or acceptance of remittitur. So ordered. Costs are awarded to plaintiffs.”
The demand letter may also discuss “spoliation” of evidence as a second cause of action
Another interesting aspect of these demand letters is a reference to possibly doing a forensic search of your computer. The letter asks you not to destroy evidence (i.e. by deleting the movie file, hash reference, metatag information, etc.) and states if you do you could be liable for additional damages and penalties for “spoliation” of evidence and says if you don't understand this contact a copyright law firm to help explain this to you. Here are the cases which I saw cited:
Paramount Pictures Corp. v. Davis
This case talks about the different types of sanctions that could be available to a Plaintiff movie, music, or software company that has evidence destroyed, for example in the course of an Autodesk software audit, or business software alliance license review:
“Spoliation Inference Davis also argues that there is no evidence to suggest that motion picture or eDonkey network software was ever on his computer. Paramount argues that this lack of evidence does not create a genuine issue of material fact because Davis is subject to spoliation sanctions for intentionally wiping his hard drive clean of all data in order to make it impossible to determine whether the motion picture or eDonkey software was on the computer at the time of the infringing activity. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” See Mosaid Techs., Inc. v. Samsung Elecs. Co., Ltd., 348 F. Supp. 2d 332, 335 (D.N.J. 2004).
A showing of spoliation may give rise to a variety of sanctions:
 dismissal of a claim or granting judgment in favor of a prejudiced party;
 suppression of evidence;
 an adverse inference, referred to as the spoliation inference;
 attorneys' fees and costs.”
Arista Records LLC v. Tschirhart
Here are the key holdings from this case dealing with destroying computer evidence:
“The Court also finds that the destruction of evidence in this case has substantially prejudiced plaintiffs in proving their case. Defendant has strenuously denied throughout this lawsuit that she violated plaintiffs' copyrights. The best proof of whether she did so would be to examine her computer's hard drive which would show, among other things, the existence of any P2P file-sharing programs and the presence of plaintiffs' copyrighted sound recordings. Unfortunately, that information is now largely gone and permanently irretrievable. Plaintiffs are left to prove their case with the scant and piecemeal evidence remaining. By destroying the best evidence relating to the central issue in the case, defendant has inflicted the ultimate prejudice upon plaintiffs.”
“When a defendant demonstrates flagrant bad faith and callous disregard of its responsibilities, the district court's choice of the extreme sanction is not an abuse of discretion.” Emerick v. Fenick Industries, Inc., 539 F.2d 1379, 1380 (5th Cir.1976). “[T]he most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). Thus, the deterrent effect in the present case is not that a lesser sanction would dissuade defendant from destroying further evidence on her hard drive. That evidence is already gone. The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing. The Court is of the opinion that lesser sanctions such as awarding plaintiffs attorney fees or giving the jury an adverse inference instruction at trial, see, e.g.Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir.2004), would not provide sufficient deterrence from similar behavior in other cases. One who anticipates that compliance with discovery rules and the resulting production of damning evidence will produce an adverse judgment, will not likely be deterred from destroying that decisive evidence by any sanction less than the adverse judgment she is tempted to thus evade.”
“In this case, defendant's conduct shows such blatant contempt for this Court and a fundamental disregard for the judicial process that her behavior can only be adequately sanctioned with a default judgment. No lesser sanction will adequately punish this behavior and adequately deter its repetition in other cases. Plaintiffs' motion for terminating sanctions is GRANTED.” “Within thirty days of this order, plaintiffs shall submit a proposed order of default judgment that sets out their damages in this case. In addition to default judgment, plaintiffs are entitled to an award of costs and fees relating to the present motion for terminating sanctions. See Fed. R. Civ. P. 37(b)(2), 37(c)(1). These expenses were incurred as a direct result of defendant's misconduct and she shall bear those costs. Plaintiffs are given leave to file a petition detailing these fees and costs within thirty days.”
Demand letter asks you to voluntarily send in a payment.
The settlement package you receive from Plaintiff's counsel will likely state that your IP address has been tracked down and that you are the known subscriber on the account, and thus, you are liable for infringement. The letter may have a credit card payment form and may ask you to voluntarily send in payment. There may also be a copyright release agreement attached. Do you know what all this means?
Financial Hardships considered
You should know that the demand letter from the law firm may note that you could be entitled to pay a reduced fee if you can sign a financial hardship affidavit showing you are at or near the poverty level, and they may also take in other considerations such as whether the subscriber or downloader is in the military. We can help you make this case if you believe it applies to you. Make sure to let us know on this.
You should have the settlement agreement reviewed at a minimum
You should have this reviewed by a copyright lawyer, you may find, as I have found in the past, that they do not offer a guarantee of confidentiality (while they ask you to keep it confidential and to not disparage them). Plus, they ask you to sign and return but how do you know for sure they will sign it on their end? If they don't, they have your money while you sit and wait for a signed settlement agreement. I would not take my chances.
Potential Defenses and mitigating factors in Torrent p2p file sharing cases
As their demand letter will point out, you can and should have a lawyer help you resolve this, and potentially negotiate either a lower settlement, or dismissal (if you did not download the movie) or explore other defenses to torrent illegal download. See video below:
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What happens if there are other movies, music, software, games or comics you downloaded?
Their letter will likely inform you that you do not get a release for these other copyrighted products as they cannot control what other copyright holders do. At least the most recent letter I reviewed said this (their demands may have changed from the time of this posting). Also, keep in mind, how do you know the case will be settled once and for all if you send in the $7,500? For example, I have reviewed one photo infringement case where Righstcorp came back for more infringement money after they took a defendants money and purportedly settled the case. What do you do then?
Contact a Torrent Copyright Defense Attorney
We have helped Clients from around the United States in reviewing their case, and discussing potential exposure and trying to examine potential defenses or mitigating factors. We can help with any type of P2P movie, software (Ex. Siemens or Vero), or music you are accused of using, viewing, or sharing illegally. Call us at (877) 276-5084.
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