Asking for $750 Minimum Statutory Damages is not as scary as you might think.
Minimum statutory damages for copyright infringement is $750. Copyright trolls and their attorneys scare accused downloaders with the $150,000 number in EVERY SINGLE SETTLEMENT DEMAND LETTER. But baked into the copyright laws is that ‘minimum statutory damages’ number, which is $750.
If you think about it, if you are caught drunk driving (a dangerous act where you can kill people), in Texas, you can be fined a few hundred to two thousand dollars and spend between three and 180 days in jail. If you steal something or are caught shoplifting (or you are caught purchasing or accepting stolen property), in Texas you can be charged with larceny and would have to pay a fee as low as $50 or as high as a few thousand dollars depending on the cost of the goods stolen.
When you “steal” copyrighted content by downloading it via bittorrent or streaming it via some ‘tube’ website or using software such as Kodi, you are depriving the copyright holder of the cost of the movie ticket (~$12) for the movie you did not see in the theater, or the cost of the DVD (~$30) that you did not purchase on Amazon.com because instead you pirated the film. These are what are called “ACTUAL DAMAGES“.
STATUTORY DAMAGES are something else. The law says that the copyright holder does not need to prove actual damages, and can rely on damages that the law thinks he is entitled to under the copyright laws. Baked into statutory damages is the concept of “minimum damages” which easily includes the theft of a video or a movie via a bittorrent download.
So when a plaintiff attorney / copyright troll scares you with that $150,000 number, understand that if you simply hung up the phone with that copyright troll and hired our firm to ‘file an answer with the court admitting guilt and arguing for minimum statutory damages’, there is a strong case for your judge to award minimum statutory damages to the plaintiff attorney.
What an “Argue Minimum Statutory Damages” strategy would cost.
But what exactly would the minimum statutory damages look like? Obviously, add $750 for the minimum statutory damages itself.
+$750 minimum statutory damages
Then, copyright laws give the ‘winner’ of the lawsuit the right to collect their attorney fees from the ‘losing’ side. Since we would quickly and actively file an answer on your behalf admitting guilt, the plaintiff attorney would not have had any out of pocket costs except the $400 filing fee (which in most cases is split between 10-15 defendants), so add another $40.
+$40 filing fees and costs split among the ten ‘John Doe” defendants
Then, the plaintiff attorney spent “a few hours” filing the boilerplate complaint (he has done this probably 100+ times already, so it didn’t take him a long time to file your lawsuit) and providing the court the documents he has already done many times already. Thus, estimate another $750-$1500 for the attorney fees to the ‘prevailing party’ (the ‘winner’).
+$1,500 attorney fees to the prevailing party (assuming that much time was even spent on the case).
Then add everything up.
+ $750 minimum statutory damages
+ $40 filing fees split among defendants
+ $1,500 attorney fees (if even that much)
Total Estimated Cost: $2,290 for having your attorney ‘plead guilty’ on your behalf.
What about the fee to your own lawyer? Here is what you pay for:
STEPS YOUR ATTORNEY WOULD TAKE TO ARGUE “MINIMUM STATUTORY DAMAGES”:
Here are the steps we would take on your behalf in order to implement the minimum statutory damages strategy.
1) We send a letter to your plaintiff attorney and file a notice of representation with the court.
2) We open up discussions with the plaintiff attorney. Discuss evidence. If relevant, discuss settlement.
3) If the attorney is being unreasonable in the settlement negotiations, we cut off settlement negotiations and file an answer with the court admitting guilt. In our answer, we make argument for minimum damages.
Who would benefit from an “argue minimum statutory damages” strategy?
Now obviously the “argue minimum statutory damages” strategy is best used with an accused downloader who has actually done the download and does not wish to defend against a copyright infringement lawsuit (e.g., he does not have a ‘clean’ hard drive, and/or the infringing file is still on his hard drive). This strategy is also best used in the situation where the plaintiff attorney / copyright troll is being greedy, unreasonable, or abusive in the settlement negotiations. There is no need to argue with an uncooperative copyright troll if you can get a comparable result by simply admitting guilt and arguing for minimum statutory damages.
Is this an effective strategy even if you did not do the download?
NO. 1) There is no reason to settle if you did not do the download. 2) This strategy involves admitting guilt. The purpose of this strategy is simply to take the settlement negotiations out of the hands of the plaintiff attorney / copyright troll.
If you did NOT do the download, there are other less expensive strategies, such as the “no settlement” representation strategy or the “ignore” route. Alternatively, your attorney can file a motion to dismiss and dispense of the lawsuit quickly based on the inherent weaknesses of the case.
Why would someone guilty of copyright infringement use the “argue minimum statutory damages” strategy?
Plaintiff attorneys / copyright trolls seem to have their own calculus as to who they ‘let off’ and who they ‘nail’ in a settlement negotiation. In other words, if they like you (or your Cashman Law Firm, PLLC attorney has leverage over them), they’ll give you a good settlement deal. If they don’t like you, or if you fit into a category which copyright trolls believe that you have a vulnerability exposed, they can and often *WILL* take advantage of you (e.g., if you are elderly, or if you are a war veteran, or if they believe you can pay a higher settlement, etc.).
The strategy of having your attorney argue for minimum statutory damages is a good way to take the power away from the copyright troll. If the plaintiff attorney is taking advantage of your situation, you can take the settlement negotiations away from him. In essence, it is forcing the copyright troll to accept a lower settlement amount than he would have proposed in a settlement negotiation.
To embarrass a troll.
Arguing for minimum statutory damages is the reason someone who did the bittorrent download would employ this strategy. However, there is the additional nudge or motivation in doing this strategy — to expose the tactics of the copyright troll. If a plaintiff attorney is using abusive tactics, or he is hiding his tactics behind a “FRE 408” header on his e-mail, you can use this strategy to expose his conduct to the judge.
Under the Federal Rules of Evidence (FRE 408), settlement negotiations are not admissible in court, unless they are brought into evidence to show bias, prejudice, or some other valid reason (e.g., abusive conduct or harassment in the context of settlement negotiations). There is a lot of latitude for an attorney who is filing an answer admitting guilt and asking the court to grant him his wishes to quickly and efficiently terminate the proceedings. Within this latitude is the ability for the attorney to share with the judge the contents of the settlement negotiations prior to filing the answer in order to help the judge understand that the plaintiff attorney was employing abusive settlement tactics in order to resolve his $12 lost movie ticket / $30 lost DVD sale claim.
Would our firm also argue the other inherent weaknesses of the plaintiff’s case in an “argue minimum statutory damages” strategy?
Honestly, it is not needed. There are a number of additional strategies that can be employed to protect an accused defendant (especially since the plaintiff attorney likely does not have actual evidence of copyright infringement), but the goal in the “argue minimum statutory damages” strategy is simply to quickly dispose of the lawsuit with the minimal amount of costs to the defendant.
Obviously there *are* inherent weaknesses in the copyright troll’s case which can be addressed in a more comprehensive defense strategy (e.g., by filing a motion to dismiss with the court) and then if that fails, filing an answer admitting guilt and arguing for statutory damages. However, this is not the purpose of this strategy. (As to the motion to dismiss because of the other issues inherent to the case, e.g., improper joinder, no evidence, improper pleadings, etc., I will be writing about these weaknesses in coming articles.)
IN SUMMARY, CONSIDER ARGUING FOR MINIMUM STATUTORY DAMAGES (IF YOUR TROLL IS MISBEHAVING).
If your copyright troll is being unreasonable in settlement negotiations, consider having your attorney (us, or whoever you use) file an answer with the court admitting guilt and argue for minimum statutory damages. Even if you were caught doing the download, you don’t need to give in to a ransom settlement. Copyright law has already anticipated your infringement, and there is a strong likelihood that a judge (especially one who sees many ‘copyright troll’ lawsuits from this same plaintiff) knows the scam these copyright holders are running, and they will be sympathetic to a defendant who employs this strategy. Why? This is a quick resolution to a copyright troll who is taking advantage of a downloader and asking for more than he should, and judges love ‘judicial economy’.
Obviously if you have any questions about what I have written here, please feel free to SPEAK TO ME and ask me questions about your case. There are many ways to take care of the claims against you without giving in to the settlement demands of the plaintiff copyright troll. Also, each defendant has different circumstances, so this article (or more generally, ANYTHING I write in this blog) is not meant to be legal advice or magical pills for you to get out of this lawsuit scott free. Trust that I have spent literally SEVEN YEARS fighting copyright trolls, and so there are many ways to approach your case. Admitting guilt and making the argument for minimum statutory damages is simply one more tool we have at our disposal to handle a plaintiff attorney who is not ‘playing nice.’