Since 2010 close to 200,000 people in the U.S. have been sued for sharing movies via BitTorrent. For the copyright holders and lawyers these cases are already highly profitable. However, some are testing a new and potentially more effective tactic to pursue alleged copyright infringers which could signal the beginning of a new avalanche of settlements.
Every first year law student knows that copyright related court cases are exclusively a matter of federal law. You can’t bring a copyright suit in state court, period.
However, during the past months more and more BitTorrent-related cases were filed at state courts. And as a complete surprise to us, the judges in question granted the copyright holders the right to subpoena the Internet providers of subscribers they accuse of copyright infringement.
Once the copyright holders obtain the personal details they use this to send out their infamous pay-up-or-else letters, asking the alleged file-sharers to send them a few thousands dollars. On the surface this seems to be identical to what the copyright holders are doing in the federal court cases, aside from the fact that it’s easier and less expensive.
But how can this be? Are these cases being handled properly, have judges forgotten that copyright cases don’t belong in a state court?
In order to find out more about this shortcut we contacted anti-piracy lawyer Marc Randazza whose law firm has filed federal lawsuits against hundreds of BitTorrent users. Randazza told us that the cases filed at state courts are not lawsuits against the alleged sharers, but merely a request to allow the copyright holders to demand that ISPs hand over customer information.
“What is going on here is a complaint for pure discovery — in other words, all the lawyer is asking the court for is for the court to give him the right to figure out who the defendants are. This seems to me to be a proper way to do things,” Randazza told TorrentFreak, admitting that he also has also filed a few cases in state court.
“In effect, it seems like a good thing for the defendants, the plaintiffs, and the courts. Look at it this way: If you do it the federal way, you need to file a case with the proper parties joined. So, separate cases for each hash file and possibly separate cases in separate states — depending on how the local court looks at jurisdiction.”
Although we’re not sure whether simplifying and cheapening the discovery process is a good thing, as it may lead to even more alleged sharers being targeted, Randazza argues that it will lead to cheaper settlement offers.
“If you do it this way, you can at least engage the potential defendants early on. If you do that, your costs are lower and thus your settlement figures can be lower.”
“In my torrent cases, my defendants have to pay pretty high figures to get out of the case — because we put a lot of money and effort into the case. If there were an easier way to get in contact with the torrenters, then they would likely all get off much lighter. Food for thought for potential defendants,” Randazza told us.
But are people really looking for lower settlement offers?
As pointed out earlier, the major problem with the settlement scheme is that people get wrongfully accused, and lower payoffs don’t change that. On the contrary, handling these cases the state court way will only increase the number of potential settlements without a proper review of the ‘evidence’.
In addition, hiring legal representation will make even less sense with lower settlements fees, as that will be more expensive than settling the case outright. It will leave most alleged illicit BitTorrent users with no other option than to settle, even if they are wrongfully accused.
Despite Randazza’s comments, we have the feeling that lawyers who take their cases to state court are not doing this with the interests of their targets in mind. But that shouldn’t surprise anyone of course.