An explanation of the RIAA’s lawsuits and what to do if you’re being sued.
Are the RIAA still filing lawsuits?
Yes. As of late, more than 19,000 people have been sued by several major record companies for using P2P file sharing software to download and upload music.
In many of the cases, the RIAA and their record companies have collected large settlements from defendants through default judgments or by those who would rather pay than be dragged through an immensely expensive litigation process
Many of the settlements tend to not be in favor of the downloaders because they usually do not understand why they are being sued and also can not afford an attorney. With the lack of an attorney representing the downloaders, the negotiations can be one-sided, unfair, and involve the RIAA giving the defendants a “take or leave it” attitude
What usually happens in RIAA lawsuits?
As for the RIAA litigation process, there are generally 5 steps.
1. The RIAA will file a mass lawsuit against a large number of unnamed downloaders or “John Does”;
2. An “ex parte” order for immediate discovery will requested and granted by the court;
3. The RIAA then sends subpoenas to the Internet Service Providers (ISP’s) demanding the identities of the “John Does”;
4. The ISP will then reveal the identities to the RIAA and may send a notice the individual;
5. The RIAA then proceeds to send cease and desist letter to the identified individuals along with a letter demanding a settlement; and
6. If the individuals don’t settle or the RIAA doesn’t hear from them, they will file an amendment to add the identified downloaders to the lawsuit or file separate lawsuit against that individual.
7. Then the individual will get another letter informing them that they are now named as defendant in a copyright infringement suit.
How do the RIAA find the downloaders?
At the beginning of this process, the RIAA hires a company to investigate and collect information from personal computers. That company will conduct searches for individuals that are sharing a large number of songs and collects information on those individuals. The information collected would be the recorded activities on their personal computers, digital screen shots of possible illegal P2P file-sharing from those computers, their screen names or usernames, and the IP addresses from which they are operating from. This company (MediaSentry to name one) harvests the information and delivers them to the RIAA who then files mass “John Doe” lawsuits. With just the IP addresses and no identities in their hands, the RIAA subpoenas the Internet Service Providers (ISP’s) for the personal identification information of the IP addresses. After the ISP’s have provided the names and addresses of the alleged infringers, the record companies sends the information to their lawyers or their “Settlement Support Center” who then send threatening cease and desist letters to the individuals.
Will my ISP notify me if they get a subpoena?
This will depend on your ISP. Some ISP’s will give you notice and provide you with a small amount of time for you to file an objection to the subpoena. You can contact your ISP to find out more about their practices in responding to subpoenas. If you do get notice from your ISP, you should contact an attorney immediately.
How do I know that I have been sued?
You will most likely be sent a letter from a representative of the RIAA. The letters will either inform you that you have been named in a lawsuit already, or that you have been named in a lawsuit anonymously as a “Doe Defendant”. The letter will then inform you that pursuant a Court Order issued by the judge in that “John Doe” case, your Internet Service Provider (ISP) provided your identifying information, including your name and address. The letter will then tell you that unless you contact them and settle within a given amount of time, you will be named as a defendant in a lawsuit.
How much can I get sued for?
The settlements/judgments usually contain 7 things:
1. A no contest from the defendants where they acknowledge that such conduct (using P2P sharing) is wrong;
2. Minimum statutory damages ($750) for each and every song they allegedly downloaded or uploaded;
3. Reasonable attorney fees and costs;
4. A permanent injunction where the defendant is enjoined from directly or indirectly infringing on the plaintiff’s rights through the internet, facilitating any 3rd party from directly or indirectly infringing, and to destroy all of their infringing copies (digital and physical copies);
5. An irrevocable waiver of the defendant’s right to any appeal;
6. A declaration that the plaintiff may still bring another suit for actual damages; and
7. The defendants shall not make any public statements contrary to the order.9 The statutory minimum for copyright infringement is $750 per song with the maximum set at $30,000. In most cases, people have downloaded multiple songs raising the amount of the settlements/judgments to immense amounts ranging from $3,000 – $11,000 which can be financially crippling.
What do I do after I learn I have been sued by the RIAA?
If you have been sued by the RIAA, you should consult an attorney immediately. Do not ignore any letters from them. It is important you contact an attorney so that you can understand your rights. If you ignore the suit, you run the risk of having the court enter a default judgment against you. This can lead to wage garnishment, liens on your home, and significant financial burden. The RIAA is not taking this matter lightly and is pursuing significant damages from each person it sues. For example, a Chicago woman had to pay $22,500 for downloading 30 songs.11 You shouldn’t take getting sued lightly. The advice and services an attorney provides in these matters can save you a great deal of time, money, and aggravation. You can contact Daliah Saper at 312.641.1551 and at firstname.lastname@example.org.
Should I try and settle with the RIAA by myself?
Negotiations with the RIAA are very one-sided especially if you do not have an attorney. By consulting an attorney, you will become more knowledgeable of your rights and thus make a more informed decision. Also, an attorney will better your chances for a settlement more in your favor.
1 For an overview of the history of the recording industry’s litigation campaign, see EFF White Paper, RIAA v. the People: Five Years Later.
2 Id at 5-7.
3 See Note 1 at 5 and How the RIAA Litigation Process Works (Dec. 29, 2006) (http://recordingindustryvspeople.blogspot.com/2005/12/how-riaa-litigation-process-works.html).
4 “Ex parte” means one side has communicated to the Court without the other parties’ knowledge to the suit. It is very rarely permitted, since the American system of justice is premised upon an open system in which, whenever one side wants to communicate with the Court, it has to give prior notice to the other side, so that they too will have an opportunity to be heard.
5 See generally BMG Music v. Cichos, No. 0:05-cv-02213-MJD-AJB (D. Minn. 2006), Carolina Records v. Westhoff, No. 04-cv-02393-WDM-CBS (DC. Colo. 2005), BMG Music v. Carbullido, No. 8:04CV589 (DC Neb. 2005), Sony BMG Music Entertainment v. Armas, No. CV-04-1682-HU (D. Ore. 2005), UMG Recordings v. Balogh, No. 5:04CV0213 (WD. Mich. 2005), and UMG Recordings v. Davito, No. 2:04CV479 (N.D. Ind. 2005), BMG Music v. Gonzalez, 2005 WL 106592 (7th Cir. 2005).
6 17 U.S.C. § 504(a).
7 17 U.S.C. § 505.
8 See note 3.
11 BMG Music v. Gonzalez, 2005 WL 106592 (7th Cir. 2005).