The independent film studios suing thousands of alleged file sharers for copyright violations may soon face their own version of Jammie Thomas-Rasset.
Attorneys representing some of the people accused of illegal file sharing told CNET yesterday that several have refused to settle with the indie studios--which is what Thomas-Rasset did when she was accused of illegal file sharing by the music industry. By taking this stance, the accused film pirates are challenging the filmmakers to take them to court.
So, that is what the studios will do, according to their attorney, Thomas Dunlap.
Dunlap is one of the founders of Dunlap, Grubb & Weaver, a Washington, D.C. law firm that has made news this year by overseeing the litigation campaign on behalf of the indie studios, a group that includes the makers of the Oscar-winning film "The Hurt Locker."
Dunlap told CNET yesterday that his firm knew of several people in different parts of the country who were refusing to settle but declined to identify them. The way Dunlap goes after alleged file sharers is by first filing complaints against unnamed "Doe defendants." He subpoenas the Internet service providers of each person to obtain their name. Dunlap then withdraws the suits against the Doe defendants and refiles the claims against those who decline to settle--only this time he names them.
"Our position is we'll go to court," Dunlap told CNET. "You'll see suits in the next month in three or four jurisdictions. We knew we were going to have to do this. We told our clients that's what we would do...In the next few weeks, at a minimum, you will see three or four individuals taken to court in different states."
These cases could be pivotal to copyright owners and file sharers alike. Ever since Dunlap began filing the suits, critics wondered whether the law firm could afford to bankroll potentially drawn out and costly litigation against someone who refused to settle.
Cindy Cohn, legal director of the Electronic Frontier Foundation, predicted this week that serious legal challenges would drain all the profit out of litigating against individual file sharers and could discourage copyright owners from pursing lawsuits as an antipiracy strategy.
In the case of Thomas, considered by some to be the Joan of Arc of file sharing, her case has dragged on for nearly five years. The Recording Industry Association of America has won favorable decisions, but the cost of trying it dwarfs whatever amount the music labels will get out of Thomas, who works on an Indian reservation in Minnesota.
Dunlap said the cases against those who refuse to settle likely won't cost much. He plans to farm out the litigation to other law firms.
Let's make a deal
Meanwhile, the studios continue to subpoena Internet service providers for the identities of people they accuse of copyright violations and send those people settlement offers. Here's what's happening in the negotiations.
First, the vast majority of people are settling and when it comes to settlement amounts, each case is different.
As we reported in May, Dunlap offers accused file sharers for films such as "Far Cry" and "Steam Experiment," to settle for $1,500 if they act quickly. Typically, in the offer from Dunlap (a copy of which you can see here), they specify a date by which the $1,500 settlement offer will expire. The firm then informs the accused person that if he or she waits until after the due date, the price will go up to $2,500.
In the case of "The Hurt Locker," the price of settling early would be $1,900.
But one attorney said Dunlap accepted $1,000 settlement payment from an elderly person who provided a sworn statement that he or she never downloaded the movie, did not possess the movie on their hard drive, and was for whatever reason operating an unsecured Wi-Fi network.
Other attorneys confirmed that in some cases, Dunlap has accepted amounts around $1,000. Others said that some of the people who have waited until the deadline for the early settlement passes have paid near the $2,500
Dunlap acknowledged that the firm would accept different amounts based on the circumstances of each case. He also offered this: because Time Warner Cable, one of the nation's largest ISPs, had agreed to look up only a limited number of IP addresses for Dunlap per month, the costs of tracking down Time Warner Cable users went up significantly. For those Time Warner customers who are identified, settlement offers were likely to be higher.
"We've had to take a hard line against some of them because of their ISP," Dunlap said. "The settlements we ask for are purely cost driven by the work we have to put in to each case."
He said costs rise when his firm is forced to pursue people who don't settle early and that it's only fair that those people pay more.
It's important to note that virtually everyone interviewed for this story, including Dunlap and Cohn from EFF, recommended that those accused of the copyright violations speak to an attorney before making any decisions. People who do nothing risk a default judgment and the case being turned over to collection agencies.
I'm not paying
On the issue of people wrongly accused by Dunlap's investigators, the lawyers who spoke to CNET were split. Two attorneys said that most of the people they had dealt with admitted they had illegally shared the films in question, and one noted that he'd seen several people settle before they received the demand notice from Dunlap. Eric Grimm, an attorney who had represented several people in negotiations with Dunlap, said he'd seen people who were obviously not tech savvy enough to be BitTorrent users.
"I've been contacted by several people in their 60s and 70s, often with little technical knowledge or understanding," Grimm said. "These are people who would not know how to install or use BitTorrent, even if they had heard of it in the first place. Not infrequently, there's an education process about how to secure an open wireless node, in order to protect against future lawsuits...The thing I find most discouraging is how often clients who I believe to be completely innocent decide to pay the money anyway, just because the litigation itself causes so much stress and anxiety. Fortunately, not all of them submit to the shakedown."
Many of the attorneys interviewed said that these indie-studio suits almost seemed benign compared with the copyright complaints that are on their way. The adult-film industry in recent weeks has torn out a page from Dunlap's playbook and is stepping up efforts to obtain the names of thousands of people who have allegedly downloaded porn.
Some of the lawyers said that the possibility pornographers may name people--and publicize the porn they allegedly shared online--could raise the stakes in the ongoing game of cat and mouse between file sharers and copyright owners.