Copyright Settlement of $200 before lawsuit?

[ssickles229]

What is the name of your state (only U.S. law)? Arizona

My husband downloaded some questionable movies and now we received an email from our internet service provider forwarding letters from the makers of the movies telling us that we need to settle for $200 a movie or be sued. The website is Copyright Settlement. Looks like a company that the studios hired to collect these settlements. Can they do this? It's 9 movies so it's up to $1800. Are they really going to sue us? Doesn't this just presume guilt? I'm obviously very upset about all this and would like to know if there is any way to fight this. Thank you.

 

[Zigner]

What is the name of your state (only U.S. law)? Arizona

My husband downloaded some questionable movies and now we received an email from our internet service provider forwarding letters from the makers of the movies telling us that we need to settle for $200 a movie or be sued. The website is Copyright Settlement. Looks like a company that the studios hired to collect these settlements. Can they do this?

Yes

It's 9 movies so it's up to $1800.

Your math is correct.

Are they really going to sue us?

No way we can tell. They have every right to.

Doesn't this just presume guilt?

Nope - it simply gives you/your husband the opportunity to settle this for a far smaller amount than the cost of litigation.

I'm obviously very upset about all this and would like to know if there is any way to fight this. Thank you.

Sure, let it go to court. But, fighting is not winning...

 

[swalsh411]

Now I will preface this by saying that every defendant whether criminal or civil (and this is a civil matter) is entitled to due process and a fair trial. Having said that, you acknowledge that your husband downloaded these movies illegally. What do you hope to gain by "fighting it" other than lawyer bills and a substantially higher award for the plaintiff?

 

[joe l.]

I Wouldn't Unless...

https://forum.freeadvice.com/copyrights-trademarks-39/should-i-pay-copyright-settlement-542749.html

I read the above thread and joined so I could reply then found it closed... So I'm here.

I appreciate the participants here, I learned something and did research elsewhere, so I feel compelled to assist others. I too am in the same general "boat."

Basically, I feel it is phishing. If the "perpetrator(s)" prove they are legitimate owners/representatives and they pursue it so that it is more than just an "offer" I will deal with it at that time. I believe that is unlikely. Further, I feel I can mount a hearty defense.

Think about it. They do not know who you are. They do not even know you may have committed multiple offenses (this would have been compiled by the ISP). Efforts to pursue it in another state are significant. I believe in my case--while I admit no wrongdoing--it may well constitute entrapment. The first step would be trying to get your ISP to provide information, which may be something of a task in itself. It is possible the "seeker" has no legitimate affiliation with the copyrighted material at all. It seems there are many people who could be targeted in this way; it seems likely the seeker would play a numbers game--send them out and just wait for some to pay. There appears to be no record of successful suits based on this tactic by these small, questionable firms; I have read that some of these firms are suspect in terms of addresses, number of employees, registration, websites, etc. There seems to be growing evidence that this approach may be viewed by a judge to be suspect. Finally, as mentioned here, paying "upfront" may well create further or additional problems (i.e., there is justification for not doing it).

I called my ISP--I told them I would not respond to the e-mail--and they told me repeatedly not to worry about it, that their e-mail was simply "notification" not to do it. And they were adamant (a court order notwithstanding, although they didn't volunteer that they would do it even then) that they would not disclose identifying information. My impression is that they consider the infringement e-mail to them as frivolous and that they would not participate/pursue it unless it was more severe and clearly legitimate. The person I spoke with said something like 'be wary of using P2P protocols such as utorrent.' Oh, and they said 'if you had committed a violation your ISP service would have been shut off.' Again, repeatedly, 'don't worry about it.' (I also think my ISP/phone company views me as a long-time, valuable customer.)

And, in my opinion if the alleged violation includes adult material, the likelihood of legitimacy and deep pockets is lessened. This seems more like a threat tactic: pay so it won't be disclosed and you won't be embarrassed.

I am disappointed that no one from these threads has come back to the forum and disclosed how their situation has played out.

Again, if my situation escalates I will deal with it at that time. (Oh, almost forgot, the e-mail I received contained some real inconsistencies and legal errors; it almost seemed like it was written by the "seeker." More evidence of something funny going on.)

 

[joe l.]

To quincy...

"The DMCA subpoena provision does not apply to requests for the identities of users of ISP conduit 512(a) services, but only to users of hosting or linking, for which a takedown may be sent under 512(c)(3)(A). Thus DMCA subpoenas cannot be used to find the identities of users engaged in peer-to-peer filesharing. Recording Industry Assoc. of America v. Verizon Internet Svcs., Inc."

Source: FAQ about DMCA Safe Harbor -- Chilling Effects Clearinghouse

Note: I'm not sure about the legal credibility of this site, but it seems good. I have read the acts and laws today but I found Section 512 a bit confusing. And, specifically, the DMCA seems to deal (mostly) with issues that are not copyright issues dealt with elsewhere.

 

[quincy]

I think you are wise, Joe, to be wary of any email that claims you are infringing on copyrighted material.

Although I am not aware of any "scams" that currently exist, I would not be surprised to hear that a warped but enterprising soul (or two or three) has decided that sending out fake demand letters is a good way to make a few bucks. (as a note: it's not, it's illegal, don't try it)

It appears in your case that the notification you received from the email and your ISP was just a warning. Most of the notifications people are receiving from their ISPs are advising them that a subpoena has been issued which requires the ISP to release the account holder's information. This is a more serious notification because it means that a suit has already been filed, evidence has been presented to a court, and a court has determined based on this evidence that the issuance of subpoenas is warranted.

After any claim of infringement and notification of a subpoena issued on the ISP, one should contact their ISP and the court where the suit was filed to ensure the action is legitimate, and one should research the copyrighted work in question to see who holds the copyright and to determine when the copyrighted work was registered. You want to make sure that if you are being sued, the entity suing you actually has standing to sue (holds rights in the work). You want to make sure that the copyrighted work was registered in a timely fashion, entitling the copyright holder to statutory damages. If not registered in a timely fashion, the copyright holder would be limited to collecting actual damages or profits realized.

As to the people who have posted to this forum in the past year or so about their copyright infringement suits, it is entirely possible that they are not posting back with what happened because nothing has happened yet. It can take a long long time for any suit to make its way through the court system. It is only now that some of the mass-defendant John Doe suits filed in late 2010 and early 2011 are breaking up into smaller copyright infringement actions filed in the home states of the now-identified Does.

I think that some of the John Does who were named in the mass-defendant suits felt confident that if they did not settle they would not be pursued by the copyright holders. They are probably unpleasantly surprised to be served with a summons and complaint in their home state. The Plaintiffs in these cases are demanding jury trials and it is only at the pre-trial conference that these former-Does, now-named defendants are deciding to settle. The majority of these settlement agreements are confidential. The terms are not released and the Doe party is not identified. The suits that are filed, however, can be located on court sites. The Plaintiff will be the same but the defendant is no longer a Doe but a named individual.

I am not quite sure what the DMCA information you provided is for, Joe (unless I made an error in one of my posts and you found a nice way to point it out ). Although the DMCA is an Act that addresses a multitude of various and sundry copyright issues, it is best known by most people for its takedown notice procedure. What is nice about the takedown procedure is it is easy and it allows for a copyright holder to have infringed material removed without having to deal with the costs of litigation.

And, yes, Chilling Effects is a good and credible site, but you should be aware of their biases, just as you should take into account the biases of any source of information you run across on the internet or elsewhere.

 

[davidmcbeth3]

If one was involved in such a suit then would one have the right to view what they say you illegally acquired?

 

[quincy]

The copyrighted work that is alleged to have been infringed will be identified, yes. Often included in this identification will be the copyright registration information. Are you asking, david, if someone who is accused of, say, illegally downloading "One Night in Paris" will be able to view the film itself to determine if they ever saw it before?

 

[Zigner]

If one was involved in such a suit then would one have the right to view what they say you illegally acquired?

One would still have to properly pay for what they illegally acquired. These suits are not to receive payment for the material. They are about penalties for committing the violation.

 

[joe l.]

Hi all. Quincy, I appreciate your thoughtful not argumentative reply.

I just assumed that many of these issues are through P2P networks, hence my interest in the interpretation that an ISP won't identify those users.

What confused me, personally, was the quoting of/use of the DCMA in such matters. I mean, copyright issues are largely contained elsewhere. The DCMA is mostly about other things. A large and quoted part is this business of lack of host/ISP liability. The business of a "DCMA takedown notice" confused me because in an alleged case of illegal downloading the ISP really has nothing to do with it, except (my understanding) that if they don't want to potentially be liable they must comply with it, especially in terms of a user agreement prohibiting it.

To me, think about the intent--VERY legitimate--in terms of promote infrastructure, realize what is happening and changing, etc. To me, reading laws is really informative and they are amazingly well thought-out. Anyway, the ISP (a big/good one) wants to protect themselves, value their customers, and squash things when they are over the line.

I'm surprised, I didn't know, about things proceeding to subpoenas. This whole business happens very, very frequently. I'm surprised legal action would occur unless it was really habitual and a make-a-statement type situation.

Finally, in my alleged case, the videos are widely available all over the place for free (or for a fee under "premium" type memberships). There's no evidence they are copyrighted or restricted. The whole thing seems to me to be smart promotion--big logos/watermarks, inferior quality, promote, view them, hopefully entice sales. There is no evidence the copyright holder seeks to restrict this availability--this to me is a/the major legitimate purpose behind a DMCA takedown--civil, you're responsible, ask/tell people to take it down. Don't deceive everyone into thinking it is available and then complain. Anyway, I would cite my state's Consumer Protection Act and related laws with respect to deceptive trade practices. So, Zigner, pay for it when it is free?

Perhaps I'll post this on some other threads--having read some of them a few things bothered me. Everything is not copyrighted and in my opinion people need to apply a reasonable, technology, worldwide, dynamic, real world standard. Thankfully, everything doesn't merit a lawsuit. Many/most blogs, for instance, are, seemingly intentionally not copyrighted. There are a number of sites/organizations that post, promote, and distribute free use material. There are circles where this is intentional and desirable.

 

[Zigner]

Why pay for it when it's free?

Spoken like a true thief of intellectual property.

I suppose that, if you're walking past a sidewalk sale, you are fine with grabbing stuff off the tables too, right?

Or, if a guy says "I've got a video of the hottest movie that just was released in the theaters, want it?", you'd be fine.

 

[quincy]

Joe, from what state in the U.S. are you posting?

As a word of warning: I advise against you posting to old threads, even if you feel you have something of importance to add to that thread. Reviving old threads is frowned upon here and, if done often, you will probably be reported to the administration and your stay on the forum may be short.

There are sound reasons for this policy (so I am told ), but why threads are left open so that someone has the ability to post to an old thread is a bit of a puzzle to me. I imagine it could have something to do with the volume of threads posted here on a daily basis?

At any rate, if you have something to say that you think is deserving of everyone's attention, you can start a thread of your own. Just remember that this forum is not designed as a platform for debates or opinions (although occasionally a thread will lead to debates on legal issues based on opinions of the law). This site is for answering the legal questions posed by posters, with the answers based on the law as it is and not as we may wish it to be . It might be nice if there were a debate/legal issue section on this forum, but there isn't. And there are other sites on the internet for that.

No copyrighted work needs to be marked in any way to be copyrighted, by the way, although if material appearing online is not marked, there will generally be a "copyright all rights reserved" notice somewhere on the site where it appears. But this is not legally necessary. Most of what you will run across on the internet will be copyright-protected and you should look at all work as copyrighted unless it clearly states otherwise.

In other words, if you did not create it, it is not yours and you will probably need permission from the creator of the work to use it. This is so even if the copyrighted work is easily accessible online, easy to view, easy to use, easy to scan, easy to download, whatever.

With all of THAT said, you are correct that many infringement suits arise from work shared on peer-to-peer file sharing networks. For important court decisions regarding P2Ps, you can check out Metro-Goldwyn-Mayer, Inc v Grokster Ltd, 545 U.S. 913 (2005) and BMG Music v Gonzalez, 430 F.3d 888 (7th Cir 2005).

I wish you luck with mounting a "hearty defense" to any infringement suit you may be faced with in the future, Joe. I know that state consumer protection laws and deceptive trade practices are two defenses that have been tried before.

Finally, I recommend you consult with an attorney in your area if you receive any notice that your ISP has received a subpoena for release of your account information, and/or if you are served with a summons and complaint. An attorney can help you form your response.

 

[joe l.]

I do find this (topic) interesting but I do not wish to argue. And it seems to me this site is all about opinions (preferably knowledgeable or experienced ones).

I am not a lawyer but I used to work for the FBI and am really a marketing research director by trade. I have had graduate courses in law (although my graduate degree is in business). I agree with the one poster's footer of "communication," but I would put it more like research or due diligence. I have done my research--it took me a couple of days to really grasp it--and I am satisfied.

Sorry quincy, I just don't agree with your positions. Copyrights expire. Many/most items are not registered (i.e., no lawsuits). Yes, it is/can be implied but there are also reasons to assume otherwise. Are you saying I cannot watch a video on YouTube without first gaining permission from the creator? That would be "use." And, I may be a little off on this, if I am able to watch it through legitimate means I am able to make a personal, in-home, non-commercial copy (e.g., VCR recording). Look at blogs on the Washington Post, NY Times, etc. and you will find all kinds of cut-and-pastes, videos, etc. Certainly they do not all have written permission or are even, technically, "fair use." Accepted use in some circles has come to be cite the source/link; if that owner doesn't want it there he/she may ask you to remove it.

My research into this is that most sites that allow or promote uploads and sharing explicitly state something like 'if you do so (post/upload) we/users assume you are the owner and it is allowed.' And they provide contacts for DMCA notices. Yes, technically it is still user/downloader beware but I believe that paradigm is changing. Personally, I like our system: owners who don't like it have options.

RE my "same boat" issue the e-mail from my ISP is identical to the one posted on this forum and available numerous other places on the web. I absolutely believe it is an unacceptable/challengable business practice: allow sharing and then scare people and try to recoup fees far greater than the price of the item. I posted earlier in this thread that my ISP will not/need not share my identity with perpetrators of this approach.

Realistically I think "pirates" have a right to be warned. I thought that was the first step--cease and desist. The law says "knowingly" or "willfully" has far greater consequences.

Finally, yes, Colorado has strong consumer protection laws. No foul intended (quincy) but I believe "talk to a lawyer" can be shallow advice; frankly, I have seldom found pursing that to be much use. And no, probably I don't fit in here; but I have read posts from others who don't share (the previous two posters' opinions either...). Honest mistake, but the two posts I was referring to are still open; perhaps I'll respond before I attempt to cancel my membership here.

Sorry, I'll repeat this. I don't believe our laws are meant to extort money or scare people. If someone is obviously not doing something for profit and there is questionable harm to the owner, and if they don't like it, ask them to stop. If that doesn't work there are further options.

P.S. The two threads I wanted to post to... one is now closed, just a few days after the last comment; the other one I couldn't find. Oh, from Michigan? I went to Michigan. Bye.

 

[quincy]

It may take just a little bit longer than a couple of days to understand the copyright law, Joe.

I want you to understand that the majority of what I write here is not my "opinion" of the law; it is me stating what the law is currently and how the courts are handling it. It is what it is.

The fact that I respect the law is probably obvious in what I post, but this does not mean I don't think that certain laws are unfair or should not be changed or challenged. I try very hard to keep opinions out of what I write because my opinion of what the law should be is not much help to a poster who has to deal with the law as it stands.

In other words, I can respect that you do not care for the copyright law. Many people don't. And I don't entirely disagree with your views of copyright law in some areas. But a court really does not care a whole heck of a lot about what you or I or others may feel or think the law should be.

You are mistaken, by the way, that a warning or a cease and desist letter is a necessary first step to any lawsuit. These warnings are done with some frequency and they are often a way to introduce a settlement agreement so as to avoid a costly court action. But they are not a legal requirement.

Copyrights will (under most circumstances) last the life of the author plus 70 years. Most of what you see online is copyrighted and the majority of this copyrighted material that you see will not be in the public domain and free to use without restrictions in your lifetime or mine.

As for my advising that a poster seek the advice of an attorney in their area: The reason for this is because the volunteers on this site are provided with a paragraph or two of one side of a story and very few specifics. That's it. It takes a personal review of ALL of the facts of a situation in order to give adequate legal advice. Because none of us here are able to do personal reviews or provide personal service, the best we can do is arm a poster with pertinent legal information so the poster can leave the forum better informed about the law as it may apply to his situation. For anything beyond this, the poster needs to see an attorney in his area.

This forum can always use good, intelligent advisors, Joe, so if you read a thread and think you can provide some insight or direction, your advice I am sure would be welcome. Plus, there is no real way for you to cancel your membership anyway. The most you can do is to stop posting and you and your posts will eventually disappear into the archives.

And, yes, I am from Michigan. Go Blue!

 

[joe l.]

I didn't intend to prolong this, but I will.

I respect the law, read it, and abide by it. Yeah, these things (forums/discussions) deteriorate into off-track opinions and references. That is not the case with my basic argument.

My YouTube analogy is a pertinent one. There are what, 1,000, 10,000, or more similar sites. Google "youtube downloader" (not illegal engineering). Look at some of these sites about their rules, how to download, how to embed, etc. Viewing, posting, or downloading from these sites is not illegal. Some videos have ads, some are uploaded by organizations like ESPN, FOX, etc.

To accuse me of saving a YouTube or similar file in my home for my own use is ludicrous and, as far as I know, it is far from illegal.

That is a fact, not interpretation. I'm pretty mystified, no offended, by someone who thinks anyone is doing anything wrong or should pay for such usage. (The previous post--'spoken like a true illegal downloader'). This is not a specific, personal attack; that is ignorant.

A legitimate offense (e.g. megaupload) is encouraging illegal sharing and charging for it.

Separately, not directly related, these seem very similar, or are, P2P networks. People upload them and others view them, save them/download them, and maybe redistribute them. I mean, how else does someone obtain an "illegal" file? Either through a video host, a P2P network, or a fileshare site. Again, this is a little off-topic, but they seem to me pretty darn similar: someone shares, seemingly within the rules, and others participate.

Have you ever visited mgoblog.com? This site does a lot of things you would call illegal for profit. A lot of others do too, and much worse. Personally I'm not in favor of it. I have five websites. Quite aside from legal specifics, BC (mboblog) has taught me a bit about web practicality. (Ever watch a Michigan football game? About one day later there will be ten non-owner highlight videos on YouTube.)

Irrelevant, I know... My guess is the first thing a judge will ask is 'When did you tell this person to stop?' Relevant? I don't believe the DMCA takedown process says 'Don't tell them to stop, send them a bill.' Sorry, I believe there is much, much practicality in such processes. (Quincy: you are knowledgeable and accurate in terms of specifics, but...).

EDIT: They are called "legal opinions." Supreme Court justices disagree. The facts/statutes alone are not all there is to it.