As the phenomenon of chasing down alleged movie pirates continues around the world, so-called copyright trolls are continually honing their techniques in order to pin down individuals to force settlement.
While those accused rarely get off lightly in any jurisdiction, in the United States the situation is particularly grim.
Companies that pursue pirates have the luxury of huge statutory damages at their disposal, meaning that a failed defense of a willful infringement claim could mean that a defendant is on the hook for up to $150,000 in damages.
While such large awards are rare, it does mean that companies are motivated to spend more time on a case than they would in other regions where statutory damages do not exist. To that end, when faced with accusations from copyright holders, people who merely pay the Internet bill at a residence sometimes face deposition.
In these cases a deposition is a pre-trial hearing during which a witness answers questions under oath about the alleged offense. The idea is to find out what the witness knows but ultimately depositions allow plaintiffs to gain ammunition towards achieving their key aim – cash settlement.
At this stage the account holder might be the assumed (putative) defendant while remaining an unnamed ‘John Doe’ as far as the lawsuit goes. All that could change after the deposition of course, which is why people are advised to obtain legal advice before taking part in one. Sadly, people’s financial situations often dictate this is not possible.
However, an interesting find by the troll-watchers at FightCopyrightTrolls reveals that putative defendants in Oregon won’t have to walk blindly into a potentially damaging deposition.
In response to a wave of lawsuits filed by notorious troll lawyer Carl Crowell, Chief Judge Michael Mosman has decided that targets of settlement demands should have legal assistance, whether they can afford it or not. A recently drafted standing order details his offer.
“Plaintiffs have subpoenaed the Internet Service Provider (‘ISP’) to obtain the identity of the party assigned the ISP account associated with the infringing activity, commonly called the subscriber. The subscriber may or may not be the same as the alleged infringer,” Judge Mosman writes.
“In order to find out whether the subscriber is an innocent third party and, if so, the identity of the alleged infringer, plaintiffs request the Court to enter Orders allowing them to take certain action, such as issuing a subpoena to the subscriber for a deposition.”
The Judge notes that if Internet subscribers fail to respond, plaintiffs could ask the Court for a default judgment. It is therefore advisable for subscribers to receive legal advice. To that end, subscribers will now get that support regardless of whether they can afford it or not.
“The Court has established a panel of lawyers who are willing to provide assistance and advice to subscribers in these lawsuits at no charge for up to 3 hours,” Judge Mosman writes.
The offer of support before deposition will be welcomed by subscribers while a case management order issued alongside should ensure that lawyers like Crowell are kept in line. The order mandates that multiple does can’t be filed in a single case and, crucially, subscribers must be informed of the free legal advice being made available.
“The ISP subpoena must include a copy of [the standing order] from the Court regarding the availability of pro bono counsel with any communications to the subscriber/account holder,” the draft order reads.
The prospect of a deposition will be a scary one for Internet subscribers so the fact they have this support should certainly lighten the load, especially for those who simply pay the bill and have played no part in any infringement.
Update: Please note these are draft orders and not yet fully official.