Copyright claim, lawyer up?

[NaSMaX]

What is the name of your state (only U.S. law)? Missouri
Ok here my situation. I received an email that a copy of a porn video was downloaded using my computer. It was my little brother's work but I pay the bill. Because of this I have decided to pay the claim of $250.00, but here is the rub. I decided to contact a lawyer as per advice I found on the internet about never contacting these people directly and found one will to work with me. However he was over $180.00 for his service and say the company would want an additional $50.00 for using "paper processing". I found this guy on the EFF website so I know he is legit but I'm going to be coming out of $480.00 in total. That more then I can afford, I may need to take out a loan for it. Should I pay the legal fee or just settle for the $250.00 electronically.

 

[wag6dd2a]

Hmmmm . . .

What is the name of your state (only U.S. law)? Missouri
Ok here my situation. I received an email that a copy of a porn video was downloaded using my computer. It was my little brother's work but I pay the bill. Because of this I have decided to pay the claim of $250.00, but here is the rub. I decided to contact a lawyer as per advice I found on the internet about never contacting these people directly and found one will to work with me. However he was over $180.00 for his service and say the company would want an additional $50.00 for using "paper processing". I found this guy on the EFF website so I know he is legit but I'm going to be coming out of $480.00 in total. That more then I can afford, I may need to take out a loan for it. Should I pay the legal fee or just settle for the $250.00 electronically.

The whole thing sounds suspect. I would ask for a free consult from an attorney. Maybe you can get out of it since you didn't do the downloading.
Is your brother legal age? Is he of sound mind to enter a contract (to agree to terms of service, etc)?

I wouldn't settle ANYTHING based on an email. PLUS if they were legit, they'd be sending you a letter and they're usually sent certified.

I'd send them a letter and advise them to do the same.
The letter should contain the specifics and validate their license to operate, etc.
An email only sounds suspicious.
Just sayin'

 

[OHRoadwarrior]

A letter, via US Postal Service eliminates most potential for fraud as mail fraud is a federal crime. Where was the porn video downloaded from? Was the home on a network or a solo computer? When a router is used, all a site can track is the router IP, not the specific computer/user. Consult with a lawyer about liability if they cannot establish who, on what computer did the download. It is not your responsibility to give them that info for prosecution.

 

[justalayman]

What is the name of your state (only U.S. law)? Missouri
Ok here my situation. I received an email that a copy of a porn video was downloaded using my computer. It was my little brother's work but I pay the bill. Because of this I have decided to pay the claim of $250.00, but here is the rub. I decided to contact a lawyer as per advice I found on the internet about never contacting these people directly and found one will to work with me. However he was over $180.00 for his service and say the company would want an additional $50.00 for using "paper processing". I found this guy on the EFF website so I know he is legit but I'm going to be coming out of $480.00 in total. That more then I can afford, I may need to take out a loan for it. Should I pay the legal fee or just settle for the $250.00 electronically.

why aren't you making little brother pay the demand and whatever it costs to to deal with it?

 

[BigMouthWino]

A letter, via US Postal Service eliminates most potential for fraud as mail fraud is a federal crime.

So is wire fraud. A demand letter from the internet pornographer received in the US Mail is just as likely to be fraudulent as one received in e-mail. In fact the penalties are the same.

Where was the porn video downloaded from? Was the home on a network or a solo computer? When a router is used, all a site can track is the router IP, not the specific computer/user. Consult with a lawyer about liability if they cannot establish who, on what computer did the download. It is not your responsibility to give them that info for prosecution.

All excellent questions that the internet pornographer would have to address if they wanted to prove up their claim in court. I would advise OP to ignore their demand and see what the next move is. If OP's little brother is under 18 and they furnished him pornography I'd love to see them in front of a civil judge or jury with their hat out asking for money.

 

[justalayman]

All excellent questions that the internet pornographer would have to address if they wanted to prove up their claim in court. I would advise OP to ignore their demand and see what the next move is. If OP's little brother is under 18 and they furnished him pornography I'd love to see them in front of a civil judge or jury with their hat out asking for money.

they didn't furnish little brother with porn. They furnished OP's computer with porn. Unless OP can argue he somehow didn't have control of his computer and internet connection, the claim is against OP. If OP wants to argue his little minor brother downloaded porn, the question isn't why the porn provider gave it to the little brother but why did OP allow little brother to purchase porn.

 

[BigMouthWino]

they didn't furnish little brother with porn. They furnished OP's computer with porn. Unless OP can argue he somehow didn't have control of his computer and internet connection, the claim is against OP. If OP wants to argue his little minor brother downloaded porn, the question isn't why the porn provider gave it to the little brother but why did OP allow little brother to purchase porn.

If you think that these pornographers actually take their cases to court you must also think the sky is green. It just doesn't happen. They know that no jury is going to care that someone stole their smut.

 

[justalayman]

If you think that these pornographers actually take their cases to court you must also think the sky is green. It just doesn't happen. They know that no jury is going to care that someone stole their smut.

I sure hope you are never asked to serve on a jury. It is obvious you would not be able to apply the law without subjective interpretation in deciding whether the plaintiff even has a right to bring their suit.

while the judge shot down their suit, obviously these porn peddlers took their issue to court:

http://www.techdirt.com/articles/20101216/16450012305/court-shoots-down-mass-porn-copyright-infringement-lawsuits.shtml

this speaks to porn peddlers that took it to court:

http://blogs.mcclatchydc.com/law/2012/08/court-allows-subpoenas-to-track-downloaded-porn.html

and some more:

http://www.thedenverchannel.com/news/31030100/detail.html

arguing a porn peddler won't sue is simply BS.

In fact, the porn peddlers appear to be the most aggressive group in suing for copyright infringement.

 

[quincy]

BigMouthWino, the companies whose films have been illegally downloaded ARE taking infringers to court. Most infringers will settle, either when they receive the demand letter or after they are served with the complaint but prior to the trial (and the companies are demanding jury trials).

Although NaSMaX has several options, one of which is to ignore the notice entirely and see what happens, most infringers find it is cheaper in the long run to settle than to go to court. The $250 is about as low as any settlement figure I've seen and, should the matter wind up in court, NaSMaX may find himself having to pay court costs, attorney fees and a much higher amount than $250 (statutory damages range from $750 per infringement to $30,000 per infringement).

Whatever NaSMaX decides to do, he should definitely verify that the person/entity making the demand actually has standing to sue (holds copyrights in the work in question) and that the film was registered in a timely fashion, prior to infringement (entitling the copyright holder to statutory damages). He should also get a release from the company if he pays what has been demanded, the release of which should be reviewed by an attorney.

 

[justalayman]

and contrary to wino's claim, it isn't the porn producers that are worried about how a jury or anybody else will see their product but the infringers realizing that if sued, their name will forever be associated with downloading porn. That embarrassment factor often plays well for the movie owners.

 

[BigMouthWino]

Thank you for the article links. Very informative reading. I stand corrected. It appears this is a niche business that has cropped up over the last year or so specifically representing the pornography industry on contingency in extracting these type of settlements.

Based on about an hour of reading it appears the attorneys behind these operations may very well sue you if you fail to settle. Follow the above advice, make sure their claim is legitimate and if you want to pay the settlement make sure you get a proper release that has been reviewed by an attorney.

I will say that based on everything I read $250 seems like a very low settlement demand so it raises questions as to the legitimacy of the company contacting you as it wouldn't seem worth their while to do all the investigation necessary for a percentage of such a paltry settlement.

 

[quincy]

BigMouthWino, I would hazard a guess and say that NaSMaX was notified earlier by his ISP that a subpoena had been received demanding the release of his personal account information and NaSMaX had the opportunity to file a motion to quash the subpoena at that time. He was probably one of several "John Does" identified in a mass-defendant (many thousands of defendants) infringement action over the illegal downloading of the copyrighted film.

Once his personal account information was released, it is standard practice for the Plaintiffs in these suits to send a settlement notice, with settlement figures often in the $2000 to $5000 range. The $250 figure is close to the lowest amount ($200) a court at the judge's discretion could potentially award the plaintiff in damages if the matter goes to trial. IF the matter goes to trial, however, the $250 figure is off the table and the plaintiff will probably be asking the court for at least the minimum amount of statutory damages ($750) and court costs and attorney fees - and a court can potentially award up to $30,000 per infringement (or $150,000 for especially egregious willful infringement).

Going to trial is a big risk for a defendant, especially if they did, in fact, illegally download the film they are accused of infringing. The plaintiff only needs to show by a preponderance of the evidence that the infringement occurred and that the defendant did the infringing - and these plaintiffs generally have sufficient evidence of the illegal download to win an action.

These mass-defendant suits filed by certain members of the film industry have taken over where the recording industry mass-defendant suits left off. Many of the mass-defendant suits filed in 2009, 2010 and 2011 have broken off this year into smaller individual suits filed against the now-named John Does who decided not to settle. Most of the named Does will settle prior to trial.

At any rate, the $250 is offered as a settlement figure ONLY. The defendants can expect this figure to be increased substantially as the company's costs increase if the company must take the suspected infringer to court. If the defendant did NOT infringe or has a good defense to the infringement, it may be worthwhile for the defendant to fight. That is why it is important for anyone receiving these notices to have the matter reviewed by an attorney in their area.

There were a gazillion threads started about these suits in the last couple of years, BigMouth, if you wish to learn more. Use the search feature and enter "West Coast Productions."