BitTorrent Litigation Updates - Porn Settlement Factors and other important tips if you received a Strike 3 Subpoena
If you are sued for file sharing Tushy, Vixen or Blacked videos, here is a major settlement factor Strike 3 will look at.
Introduction
Even during this terrible Covid pandemic, adult pornography filmmakers are suing individuals across the United States - from Florida "bill of discovery" actions to federal court copyright infringement lawsuits in California, New York and other states. When this happens, it is very likely (although not certain) that Plaintiff counsel (normally Mamome Law or Bandlow Law) will be able to eventually obtain the internet subscriber's NAME and ADDRESS. This allows them to LOOK YOU UP - so to speak - to see TWO MAIN THINGS in my opinion:
1. Does the internet subscriber have assets (are they worth pursuing, and how large of a settlement can they extract). This is done via "asset searches" that either they perform, or likely have a third party investigation company perform. An asset search can uncover many things, including whether or not a person owns real estate (including an address history), has a professional license (perhaps indicating a higher lifetime income earning potential), has ever filed bankruptcy (including recently which could be an indication of financial hardship), bank account balances (if a permissible purpose under the GLBA applies such as "institutional risk control" as they call it) and UCC filings. There are other things, but these are the important ones for torrent defense purposes.
2. Is the "subscriber" also the actual "infringer" - in the 9th circuit, we have the Cobbler Nevada case which states that a porn litigation law firm has to show some plausible evidence ("additional evidence" as they refer to it in their amended complaints) to show that the SUBSCRIBER is ALSO THE INFRINGER. Many times (more than most people think, this is NOT the case). The downloader/infringer could have been the husband or son, or one of their friends (for example, when the wife is the internet subscriber).
Sometimes, the subscriber is visited for long periods of time by friends overseas who may not be familiar with the United States copyright laws, and they may be the downloader. You could have a fraternity that is the subscriber and who knows who did the downloads, or a group home. Sometimes, you may have an "unsecured wifi" situation, and in that case, a neighbor may be the infringer. So, in cases in California and Arizona where we are licensed to practice law, the Cobbler case will prevent a legal hurdle that they cannot get over (meaning, they cannot move forward in the litigation and their amended complaint could be subject to a motion to dismiss the complaint). We have seen cases dismissed likely for this very reason.
So, if film production companies like S3 are willing to find various types of evidence meet the Cobbler "hurdle" (as I call it), and they are willing to move forward, what can you do to protect yourself from a legal action that you are not responsible for. Here is a recent blog I wrote which you should all read and share that discusses THE SINGLE MOST IMPORTANT THING YOU SHOULD DO IF YOU ARE BEING PURSUED BY A BITTORRENT LITIGATION PLAINTIFF. In short, search your name on google and set all your social media accounts to PRIVATE. This will prevent them from trying to find what I refer to as "tenuous Cobbler connections" that seek to hold you liable, and force you to pay a large sum of money to settle your case.
Some things (I have seen as a leader in this niche area of copyright infringement law) they have tried to use to meet Cobbler criteria:
1. They will likely search you on google to see what comes up (search yourself first and see). Are you talking about VPN's or TORRENTING? Talking about the latest Tushy, Blacked, or Vixen movies you saw?
2. Do you talk about how cool file-sharing is? Talk about how not to get caught torrenting? How to make money torrenting? How to legally download free porn? It does not (in my opinion) take much to meet the Cobbler (plausibility) standard, so what do you have out there on facebook? Maybe you should set your account to private.
LITIGATION TIP: note deleting, destroying, or altering data while involved in a legal matter is not advisable and no attorney should ever tell you to do this. To me, there is a big difference between setting your social media accounts (like twitter, instagram, faecbook, YouTube, etc.) private, and actually deleting evidence, which could lead to serious sanctions in a federal court case.
3. Twitter - do you follow porn stars? If a porn star tries to follow you AFTER litigation (yes, we have heard of this), it would be wise to decline such an offer, and again, consider setting your account private.
4. Do you recall downloading other things through Torrent protocal (for example, say a guide to software programming) and your LinkedIn profile says you are a "software engineer" for example? We have seen this type of approach used as well to try to prove the connection between a SUBSCRIBER and an INFRINGER.
Think about these things. If I were being sued or pursued I would want to know what I can see, because they can see it to. This is a KEY FACTOR in defending these types of cases. If you are facing legal action, call us for a free initial consultation at (877) 276-5084 or email us through our contact form.
Settlement factors -
How much will it cost me to settle my case?
This is probably the question I get most often. "How much will it cost me to settle this case?" To cut to the chase, I would say $1,500 at a minimum, on up to about $30,000. Usually, somewhere in between 5-15k, but settlement depends on a variety of factors, here are the most important ones to me:
1. Do you have equity in your house (if you own your home)? If you have equity in your house. For example, you own a home worth one million dollars and have a loan for 500k, in that fortunate instance, you would have 500k worth of equity. If you get caught downloading and receive a letter from a law firm like Bandlow Law (representing Strike 3 Holdings, LLC) - or a law firm representing Malibu Media (ex. for X-art file sharing), your real estate holdings (both personal and investment properties) will for sure be a factor they look at. If you rent, there is a better case, usually, to be made for a hardship.
2. What do you do for a living? What you currently make and what your future earning potential might be can also play a role. A freelancer, or contractor that works on a per project basis may not be in the same position to settle as might be a doctor, lawyer, accountant, software engineer, CEO, CFO or other technology professional for example. This is why turning your LinkedIn account to PRIVATE may help. Keep in mind, there are other ways to find out what people do for a living, for example, if they have a professional state-issued license such as a civil engineer. The more earning potential you have, and weighing that against your current living condition (rent/own), to me are the two biggest factors they will look at.
There may be some other things that get weighed into the equation:
3. Are you a candidate to file bankruptcy? For example, if you have 70k in credit card debt, and they want 15k to settle, it might make sense to discuss your case with a bankruptcy attorney who may advise that bankruptcy is a good route, and a good time to file. Usually, we do not see Strike3 attorneys wanting to force people into bankruptcy, that is why it is important to discuss things with us if you feel you may need to go this route. We can potentially leverage this factor to help reach a more realistic and affordable settlement.
4. Do you have military experience (veteran)? We do see that at times this can help lower a settlement as well.
5. How many movies were shared/downloaded? This is also an important factor in reaching the final settlement amount. Many times, S3 will seek $600 to $700 per movie to settle. However, if you have 100 movies for example, this would equate to 60-70k which is out of reach for most people. In these cases, we make the case for a lower settlement, or submit financial documents, leases, etc. to substantiate a financial hardship.
6. Other hardships - financial, medical? (taking care of parents, or caring for people with Covid, or dealing with Coronavirus)
These are some of the main factors. In sum, just realize they may be demanding $20,000, $30,000 or more to settle the case. You may say "well I don't have that kind of money, I live month to month" (like most do). This is not usually the final amount they will agree to. There is a settlement process that takes place, and back to the main point of this blog, if you have equity in your property, or even money in a 401k, we have had times where these internet attorneys will look to the equity in your property and monthly income to see what you can realistically afford. We tell YOUR SIDE OF THE STORY.
I recently had a (ruthless) Malibu Media attorney who emailed me stating that my client could go get a HELOC (Home Equity Line of Credit) to pay for the settlement if he could not come up with the money - all for allegedly downloading a few adult movies on BitTorrent (p2p file sharing). I know this may all sound crazy, and many people are not aware of the intricacies of copyright law (fess up, who used Napster) and there are many foreigners being pursued (some on VISAS or here short term work permit). They did not grow up learning the United States laws, rules and regulations, but as the old saying goes they are "presumed to know the law." This makes sense, but is not always fair. For example, in a recent round of Strike 3 cases, just about all my clients were asians, many in and around the Pasadena area. I had to inquire about "adjusting the knobs" on their geo-targeting technology as it seemed not to be random.
Anyway, this should provide you with a basic flavor of what you are up against, know that in advance. Our boutique law firm has helped hundreds of individuals respond to allegations of copyright infringement and get cases dismissed that have no business being pursued, and achieve workable settlements for others. In California, (including in the Central District and Northern District), we are the clear leader in the field and other attorneys even refer cases to us - usually from Miami-Dade "bill of discovery" cases.
Contact a BitTorrent Litigation - ISP subpoena response law firm
We are one of the most experienced (P2p - peer-to-peer) internet file-sharing defense law firms in the United States. We have more litigation experience in this area that all the other firms on the defense side. We have handled over 200 torrent defense cases. In this specialized area of law, there is no substitute for experience. Check out our past Client reviews (note, I cannot edit out bad reviews - all five star). We care about you and your situation. We understand the need to keep this situation PRIVATE and CONFIDENTIAL and to be RESPONSIVE to your needs at this critical time. Our cases settle anonymously and with the best terms of settlement possible (so you are protected from them coming back at you for other downloads).
We know their lawyers and they know us. We work hard to fight for you within these parameters and we are the firm that can help get your settlement as low as possible. It is not always an easy task as Plaintiff counsel want to achieve high settlements for them and their clients, but we have the experience to take care of this legal problem and minimize the damage.
Call us at (877) 276-5084 for a free consultation if you received notice of subpoena from your ISP or email us through our contact form. Make sure to check our out popular law YouTube channel (make sure to SUBSCRIBE to join nearly 25,000 others who love our videos). We have many Torrent-related videos that can help you better understand this process, which can be complicated.
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