Tips on Defending an Illegal Downloading Lawsuit

June 5, 2017

By Associate Attorney Rishi Jain

Initially, it is extremely jarring to be notified by your internet service provider (“ISP”) that a subpoena has been issued in a case that is against an IP address that you own. Your immediate inclination may be to either ignore the notice, or to immediately settle for whatever amount the adverse party in the case tells you to pay. Before doing anything, consider about the following and speak to an attorney to understand your rights and the full range of options you have.

First, check the letter from your ISP to confirm that you are the subscriber to the listed IP address.  At this beginning stage of a lawsuit, the adverse party suing you can only identify an alleged infringer by the IP address, a unique set of numbers which identify a single subscriber line. If the IP address listed in the notice you received is not yours, contact your ISP immediately to correct the issue.

If the IP address is yours and you are the subject of a subpoena, you may try to file a motion in the related lawsuit to quash the subpoena (i.e. prevent your obligation to comply with the subpoena). You may also want to file motions to separate your case from a group of other defendants in a lawsuit (if applicable to your case) or to protect your identity.  While many courts will allow an adverse party to pursue subpoenas to retrieve a potential defendant’s name and address (see e.g. Malibu Media, LLC v. Doe, 2013 U.S. Dist. LEXIS 119100), there is some precedent for issuing an order protecting your identity. 

Second, and most importantly, is the question of whether you are innocent. Keep in mind, the adverse party has to prove that 1) it owns the copyright to the material downloaded, and 2) that you, the defendant, downloaded the copyrighted material. This is an important distinction: it is not enough that you own the subscriber line to the ISP, the adverse party must present evidence that you, or someone with your knowledge and consent, actually downloaded the copyrighted material. However, litigating any case requires money and time, which often leaves a defendant at a major disadvantage.  If the costs of litigation is a concern, this information can also be used to negotiate take a lower settlement offer, saving you money. 

Discussing these issues with an attorney can help you understand many aspects of this issue, and arm you with the information to make the best decision possible.  Knowing your options, the facts surrounding your case, and an understanding of the litigation process will allow you to work hand in hand with your attorney to ensure the best outcome possible given your circumstances.