Leonard J. French

Attorney & Counselor at Law

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The Bittorrent Bellwether Trial

Lessons learned from the first bittorrent trial in the U.S.

By Leonard J. French, Esq. – Posted: 12-June, 2013 – 08:20 EDT – Edited: 26-October, 2013 – 12:40 EDT


The first-ever 'trial' in the U.S. over unauthorized file-sharing using the bittorrent protocol blazed a trail for future Plaintiffs. What many had hoped would be an opportunity for defendants to show some sort of illegal maneuvering on Plaintiff's part instead became a court-sanctioned presentation of Plaintiff's case. In the end, Malibu media was able to show enough evidence to convince the John Doe defendants that settlement was a more appealing option. I was fortunate enough to defend one of the John Does who were chosen for trial. While I cannot discuss the settlements, I can discuss what the trial means for Internet users and future defendants.

We now have an idea of what kind of damages to expect

At the end of trial, Judge Baylson opined that there were varying damages for the defendants based on their individual circumstances. At a minimum, a defendant can expect to pay at least $2,250 per infringement. A defendant who drags the case out unnecessarily can expect to pay at least 5 to 10 times that plus the opposing side's attorneys fees.

We now know how the evidence is collected

With the myriad speculation on the Internet, many defendants do not know what information is true regarding a copyright Plaintiff's ability to collect evidence on a potential defendant. We now know that potential Plaintiffs can hire investigators whose systems are robust enough to survive scrutiny in court. Perhaps a future case will be able to test the veracity of those procedures and evidence.

We now know that Malibu is a genuine copyright owner

I'm sure that we can argue all day over whether Malibu Media is a "copyright troll". Judge Baylson made a point of noting that he did not feel that Plaintiff met the legal definition of copyright troll – an entity which does not properly own the copyrights it is suing on or an entity which is acquiring copyrights solely for the purpose of filing lawsuits.

We now know what it costs to defend these cases

It's important to be able to counsel defendants on what to expect during their case and that includes finances. With even the limited trial involved in this case, we now know what to expect when a defendant wishes to have their day in court. This includes estimating the costs involved so a defendant can make an informed decision about the path of their case.

What this means going forward

The best way to avoid becoming a defendant is to make sure that no one downloads any copyrighted material without permission using an Internet connection for which you are responsible. This means securing your network and your computers, keeping them free of viruses, and limiting access to them to those you trust not to break the law.

If you or someone you know has received a notice in one of these cases, I urge you to contact me.

Leonard J. French

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