Why suing downloaders for infringement is misguided.

Much of the work that I do in copyright litigation circles not only around defending John Doe Defendants who have been implicated in some lawsuit or who have received a notice or a DMCA letter from their ISP.  Rather, a lot of what I do involves having discussions with copyright holders and their attorneys swaying them from suing individual downloaders.

I wouldn’t say that a newly minted attorney (or a seasoned veteran attorney) who chooses to fund his law firm’s coffers with tons of settlement cash by suing individual downloaders is unethical for doing so — I simply think their attempts to stop piracy by suing downloaders are simply misguided.

Many attorneys justify their attempts to sue individual downloaders by the “death of a thousand cuts” theory, which acknowledges that one “lost sale” from a download won’t hurt anyone. However, multiply that by thousands, and a copyright holder can go bankrupt from the loss of revenue from piracy. While I understand their concerns (and agree somewhat in theory), I still say that going after the direct infringers (e.g., the internet users who copied and distributed the copyrighted content via the use of bittorrent software) is the WRONG approach to solve the piracy problem.

Below is a snippet of an e-mail I sent to an attorney who has been quite proactive on the copyright infringement front. His approach was somewhat different from the Prenda / Lipscomb / Dunlap Grubb & Weaver, PLLC approach to suing internet users, and while I will keep his information private for the purposes of this article, I agree that these predatory lawyers (the “copyright trolls” we speak about on the blogs) have made a mess for the copyright holders, “poisoning the well” for copyright holders who still wish to sue downloaders. I hope reading the following snippet may sway them to pursue other avenues to solve the piracy problem.

Dear [attorney],

I agree with the “death of a thousand cuts” problem when it comes to piracy and bittorrent. I am not sure what percentage of downloaders would actually purchase the copyrighted title (or a subscription to a copyright holder’s service) if the pirated title was not readily available to be downloaded, but it would be interesting to take an unbiased study and research the issue.

I also suspect that much of piracy is a distribution problem. I’ve heard this real-world example [from a few years back] as a justification for piracy. If someone wanted to see the “Game of Thrones” HBO series and they did not have access to HBO’s online website service (e.g., no cable; not going to subscribe), then they go to rent it on Redbox, Netflix, or Amazon Prime, and it is not available, and then they even go to purchase a season online and even that is not available, then they’ll pirate the series and feel justified about it (and they’ll be angry at the company as the bittorrent software moves the files onto their hard drives). I doubt this is the same for much of the adult content litigation (which I suspect infringement is a result of “browse, click and download, then watch”), but I’ve often commented that a wholesale iTunes store-like site (“Red Light Box”) would be a good source for purchasing or renting adult content (which is the subject of many of the lawsuits, as you know).

The jist is that I understand the desire to sue individual downloaders, and I understand the justifications for doing so. I am also certainly not going to sway you from suing individual downloaders with an e-mail.

However, I have always believed that internet users are not the correct parties to sue because many of them do not appreciate the severity for the acts of infringement they commit quite regularly. In other words, they are not the correct parties on whom to put the risk and/or the burden of violating the copyright laws because there are better alternatives available to solve the piracy problem and to mitigate damages from lost revenues. In my opinion, it is better to approach the issue from the “eliminate-the-available-content” approach via DMCA takedown letters, removing links, and taking down bittorrent trackers. Suing the content hosting companies is another approach, as you have explored successfully (although I understand the frustrations of this approach as well — how many times can someone sue The Pirate Bay).

[2017 UPDATE: FYI, Carl Crowell has created a new entity called RIGHTS ENFORCEMENT which has reverse-engineered CEG-TEK’s proprietary DMCA copyright infringement notice system.  Many of you have visited CEG-TEK links thinking that RIGHTS ENFORCEMENT was CEG-TEK, but really they are an ‘evil twin’. Nevertheless, keep reading, and think of “RIGHTS ENFORCEMENT” instead.]

I even don’t like the CEG-TEK $200 per title infringement software system / website solution where they send letters to the infringers days after the download, however, this appears to be the most efficient way to get a quick settlement and teach the downloaders a civic lesson on the dangers of downloading copyrighted titles.

But as for “poisoning the well,” yes, I fully see your point and appreciate the damage these law firms have done with their copyright trolling lawsuits.

Warm regards,

CONTACT FORM: If you have a question or comment about what I have written, and you want to keep it *for my eyes only*, please feel free to use the form below. The information you post will be e-mailed to me, and I will be happy to respond.

    NOTE: No attorney client relationship is established by sending this form, and while the attorney-client privilege (which keeps everything that you share confidential and private) attaches immediately when you contact me, I do not become your attorney until we sign a contract together.  That being said, please do not state anything “incriminating” about your case when using this form, or more practically, in any e-mail.

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    4 thoughts on “Why suing downloaders for infringement is misguided.”

    1. Actually, I think the only way to stop piracy is to go after end users. DMCA takedown notices are ineffective and often ignored by Bit Torrent sites. In any event, the problem is demand not distribution. Demand is created because most people that infringe get away with it and the penalties for infringement are too low. The anti troll movement folks are wrong when they assert the infringing Internet users should not be punished. This is no different than shoplifting. In fact, the real problem is failure by prosecutors to pursue criminal actions against large scale individual consumers. The recent Belweather trial was very important because it showed that most of these cases have merit. Lets face it. The anti troll activists are wrong.

      • Maurice… do you have a problem with controlled substances?

        “the problem is demand not distribution”
        Over 2 years to get a movie to Oz. A market with several million people and they feel they can ignore it.
        The problem sweetie is parasites like you.
        Like shoplifting – Please show me the footage of a warehouse where DVDs winked out of existence as someone hit a DL link.
        The Bellwether showed that some people are not nice, others can be bullied into submission, and not a single shred of the “evidence” being offered was taken to task. And because you bring it up, the company in that case claims their website gets hacked right before every release and somehow the content gets online. They also said they aren’t out to ruin peoples lives, yet there is that pesky letter form their lawyer to a OBVIOUSLY innocent man telling him to settle or they would just make it cost more.

        So media types here are your options.
        Listen to people like maurice, burn your brand to the ground for a few quick bucks (less his large cut), and believe I am the antichrist.
        Stop believing the hype and consider that maybe just maybe the people who like to lie to you to keep getting their paychecks might not be helping you. That some random guy on the internet with a trendy avatar *insert smile with the lens flare here* might understand this market and demographic better than you or the parasites do. That I don’t expect you to give it away for free, but I do expect you to stop using the charts that you’ve used since the 1950’s telling you this is how you do things.

        Welcome to the digital age, you can cling to the old model and keep bleeding, or embrace the future and make enough money to shut the old timers up. Chose wisely.
        (Protip: pick the guy in the mask, masks are cool)

      • Mr. Ross,

        You seem to have misunderstood the definition of a copyright troll. Merely suing an individual for infringing on one’s works does not make one a copyright troll. The owners of FightCopyrightTrolls and DieTrollDie are both explicit that they do not contend a copyright owner shouldn’t be able to protect their works. Motives and practices are the key factors in troll-status. Have you made a good faith effort to understand the stances held in the anti-copyright troll community? I get the impression you’ve conflated anti-troll stances with pirate party stances; the former may consider the current punishments too high, but it is only the latter that recommends abolishment (or severe reduction) in copyright protection and argues infringers (via piracy) should not be punished.

        Are you familiar with their tactics employed against Mr. Leo Pelizzo? A starting point for the anti-copyright trolls stance on the issue is here. I look forward to your thoughtful commentary.

      • Hey, Sorry Morry! How’s the gay record label thing working out for you? I still haven’t bought anything from it yet because I have no idea what the hell products it has, but since you still want to be a Prenda fanboy, I think I’ll pay you in one-finger salutes instead.


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