Abusing contract law is a very old business model for the movie and music industries. There just wasn't the opportunity to scale like this before the internet.
I don't get it. If I'm being sued by a big record company, then unless I'm absolutely 100% sure I'm going to win, wouldn't a loser-pays system be an even bigger disincentive to fight it in court? I'm sure their lawyers cost much more than mine do.
In fact, doesn't loser-pays in general make it even easier for big players to intimidate small players? "I'm suing you for actual damages of twenty dollars. My legal team costs one million dollars a day. Want to settle?"
How come loser pays works well in the rest of the world? Because that's not how loser pays works :) You don't pay a million dollars a day, you pay a reasonable price instead; they pay the rest. Also, loser pays is not decided on the whole case, but on specific subcases. So the suing party is less likely to use the shotgun approach where they throw every claim and the kitchen sink in, in the hope that they at least win something. Also, if you claim $1M damages, and the judge awards you $1k, that counts as a (partial) loss. So it also ends ridiculously high claims.
> Nearly every Western democracy, other than the United States, follows the "English rule," which requires the loser of a civil suit to compensate the winner for his or her attorney's fees. -- http://en.wikipedia.org/wiki/English_rule
There is much much more suing going on in the US than in Europe and the prime reason is that Europe has a loser pays system.
> There is much much more suing going on in the US than in Europe
This will be an unpopular opinion, but that's not necessarily a bad thing. How many wronged plaintiffs in Europe end up never having their day in court because of the threat of paying the other party's attorneys fees?
When people think they're in the right - they sue (or defend).
Further, because of the 'loser pays' system, if the case is obviously bogus or blown up, often a lawyer will agree to take up a defense just for the right to claim the other side's expenses (e.g. instead of paying the lawyer, the lawyer takes a relatively small fee plus the right to any 'expense fees' leveled on the other side).
In addition, I believe that in most of Europe lawyers cost a lot less than they do in the US (certainly so in Israel), to which a contributing factor is that less litigation going on.
> in most of Europe lawyers cost a lot less than they do in the US
As a lawyer, I don't see how this is a positive thing :)
But seriously, nobody knows how many cases there are at the margin that don't get brought due to the loser pays system. Neither system is perfect though, and I can certainly make arguments in favor of either.
For example, The Hurt Locker is suing about 25,000 people. It's really unknown (both to the people they're suing and to The Hurt Locker) whether or not the case will succeed. Right now, there's a huge incentive for the individual to settle since the case might see the individual lose hundreds of thousands of dollars. With loser pays, maybe the loss goes from $100,000 to $120,000. However, on the other side, courts might start finding that The Hurt Locker has no case. In a loser pays system, The Hurt Locker could then be out the $20,000 for every suit they've filed.
It puts pressure on people filing a case to make sure they have a good case and aren't just trying to extort a few grand out of someone that will have to pay more money to defend in court. It puts pressure on defendants that are actually in the wrong to settle for a reasonable amount. In cases like this (where we might not have a great indication of where courts will go), it puts pressure on both sides not to overreach. The Hurt Locker wouldn't be suing 25,000 people if they might be on the hook for paying those people should a court decide against them. They'd be more cautious - test the waters, see what happens.
Loser pays is generally seen as protecting the small player. First, they can't claim unreasonable legal fees - they're often decided by the court. Second, usually loser pays incorporates the amount sought. If they're seeking $100,000 and they get awarded $10,000, they're the loser (even though they won an award). That would keep them from asking for too much in their suits since a jury might award actual damages and a little bit more. Likewise, in some areas arbitration processes are used in the process. For example, two legal teams sit down with the arbitrator who looks at stuff and determines an amount $X that seems fair. You think you deserve $10X so you go to trial. You only get $X. You wasted the court's time and money and are on the hook.
It puts pressure on people who are in the wrong to settle and puts pressure on those in the right to accept reasonable offers. Right now, there's no real reason not to sue. The Hurt Locker is pushing out these suits since it's a little administration without a downside. If they could be on the hook for thousands of dollars to those they're trying to sue, they'd think twice about it, about the amount they sued for, and about whether they were sure about the strength of their case.
My understanding is that in loser-pays as it is actually practiced in Europe, the courts limit the fees paid by the loser to reasonable and customary levels, and don't look kindly on parties that inflate their legal costs.
Still, I think you're right, if one is not fairly confident of winning, loser-pays provides additional incentive to settle. I don't see this as a bad thing, personally.
If you sue someone, you pay your court fees and lawyer fees no matter what, and if you lose, you pay the defendants court fees and lawyer fees in addition. But the defendant doesn't pay the plaintiff's legal fees. It's not perfect, but I think it's better, and this (however incorrectly) is how I usually imagine "loser-pays".
Secondly, there would probably need to be (in either version) a basic rate set for lawyer fees. I can have an expensive lawyer if I want, but I can only be "reimbursed" by the loser at the "basic rate". Maybe if I represent myself, I could even get my time reimbursed in the same way.
You don't need to be 100% sure of winning, only more sure than the person suing you. Well, that's probably saying too much. Let's look at a few scenarios and see what comes out. In this case big means someone with lots of money, little has not so much. Being in the right means being more likely to prevail in a trial - this could be represented by a percentage. We also need to consider that there are people who are not very realistic in assessing the strength of their case. Let's call them irrational. That gives us the following possibilities:
A. big v. big
B. little v. little
C. big v. little
1. big is clearly in the right (>90%)
2. bis is probably in the right (>50%)
3. little is probably in the right (>50%)
4. little is probably in the right (>90%)
a. party in the wrong is rational
b. party in the wrong is irrational
So which combination benefits more from loser pays? My contention would be that any situation involving 1 or 4 very likely settles right away and those with 2 or 3 very likely don't get brought up in the first place.
This is already much longer than I meant to get into but I think there would be an overall benefit in moving to loser pays.
You are assuming that somehow people will have faith in the fairness of the court system and fight it out till the end.
People don't have faith and they are offered a plea bargain where they plead guilty so they end up being the losers.
This is basically a game of chicken between an individual with $50K worth of assets and a large behemoth with $50B worth of assets avialable. The longer the fight the higher the stakes. Eventually individuals cannot take any more risk and cannot afford to pay any more fees. It also not just a financial cost but time (i.e. opportunity cost). One's lifetime is limited but a corporation can just keep hiring warm bodies as long as the sue-and-threaten model keeps being profitable.
The words "guilty" and "plea bargain" do not quite fit since these are not criminal cases. I humbly suggest the replacements "liable" and "settlement". I hope do not mind my mentioning this.
While I agree that's a good system, I'm not sure how much that would help here. I imagine the larger deterrent is not the court fees, but the possibility of a $150,000 fine.
I surprised you don't have that system. It makes perfect sense to me that the loser should pay. What is the counter argument? That people will be less likely to sue? So you prefer to encourage lawsuits then?
With that many cases, it's remarkable that they haven't accidentally threatened someone who either happens to be of means or is a shark of an attorney. If I had the money/ability, I would love to take one of these things to court.
>But earlier this year, the judge found [$1.92 million] to be "monstrous and shocking" and reduced the amount to $54,000. Following that, the RIAA informed Thomas-Rasset that it would accept $25,000--less than half of the court-reduced award--if she agreed to ask the judge to "vacate" his decision, which means removing his decision from the record. Thomas-Rasset rejected that offer almost immediately.
At least she's principled. I wonder if she has a means of accepting donations...
yes, but I'd imagine part of the reason people would want to fight against such claims is to help set precedent and prevent others from having to pay ridiculous amounts. If nobody fights, everyone loses.
I would imagine that those people may want to avoid media coverage, and would thus settle (in their favor, or the alleged copyright holders') quickly and without much fanfare.
I'm personally wondering if they've ever attempted to sue an organized crime figure, or relative. I wonder how many of these suits get quietly dropped after someone stops by their family's house for a "friendly chat".
From the linked document, it looks like the bulk of the alleged content is for various adult titles. Who wants to go to go to court for allegedly sharing "Don’t Tell My Wife I A$$ed The Babysitter" (1257 users)?
Given the choice of an publicly embarrassing allegation vs. paying "damages", it is no surprise that so many are settling rather than going to court.
I use BitTorrent to download, for example, Linux distributions, or movies from VODO - http://vodo.net
And don't think all these 200,000 ISP users/contract owners have downloaded copyrighted materials. It is not proofable. It could be a computer virus, a guest, a hacker who has hacked into thier Wi-Fi. How are they going to proof?
So far, the lower courts have set the precedence that IPs are not people. If I catch an IP doing something wrong, I can't yet say to the ISP account holder "Your IP did this, therefor YOU are guilty," for the very same reason red light cameras need to identify the driver of a car running the light instead of only the license plate.
If you have a locked wi-fi and are sharing files via torrent, in civil proceedings (which these are), the companies have plenty of evidence saying that you are probably the one sharing the files. Remember, it's civil: "beyond a reasonable doubt" isn't required.
And if you fail to protect your wi-fi they could claim negligence. "I have heard other lawyers compare leaving your wifi open to leaving a loaded gun lying around." (http://torrentfreak.com/are-you-guilty-if-pirates-use-your-i...).
I think it would ironic if WEP became popular again because it could protect negligence and is trivially hacked.
That's just the theory of the author of that essay. It has never been tested in court. The "judgement" the author claims at the start of his essay was actually a settlement offered by someone who thought $10000 was worth less than the risk of a court case. (Perhaps because he didn't want to be publically accused of downloading gay porn.) That whole essay is based on deception, and the author is a sleazebag.
I think you'd have to be crazy to upload on bittorrent. IANAL but I think you can only get sued for redistribution of copyrighted material, so downloading is safe.
The set of targeted works is pretty small, from what I hear. My understanding is that as long as you stay away from gay porn and recently released movies, your risk of litigation is negligible.
It depends how bad the enforcement tools are. They may make no distinction between uploading and downloading, just output a list of IP addresses that are part of the swarm.
Sure, but in the eyes of the law, you're still guilty.
To pick a random horseman of the infocalypse to draw an analogy from, importing drugs into the country is arguably worse than selling them on the street corner, but both are illegal.
Just two months ago I received one of these letters alleging I downloaded a game over BitTorrent, showing an IP address and how many bytes of the file I supposedly seeded.
Problem was it wasn't my IP and I had never heard of the game. I had to fax Comcast's "Security" department to verify that the IP address in question had never been assigned to a modem on my account...
Yet Comcast told the copyright holder I was their John Doe.
As an aside - what do you do to keep track of your IP? I have a consumer-grade router (running Tomato firmware) between "the world" and myself, so the router actually gets the IP.
Is there some automated solution to keep track of this?
I've had Comcast at 5 different apartments and only once did my IP address ever change while living at the same address, after a prolonged maintenance period when they ran new physical cables in my neighborhood.
The IPs are semi-static, and I would notice immediately if my IP changed since I have deny requests from any IP but my own to several webpages of mine.
Plus the IP address in the copyright infringement notice had a rdns hostname corresponding to an entirely different state.
I've got Qwest/CenturyLink and they change my IP quite frequently. A month ago they were changing it once a week. In the early evening (9-10 PM local time).
> The real question is why do you think that can't be right? It's too high? I'm surprised it hasn't happened to one of my friends.
Exactly my initial thought. But now that I think about it, at 1 in 1200, I'm not surprised that it hasn't happened to one of my friends, but I wouldn't be surprised if it happened to one of my friends.
Entrapment is only entrapment if the person doesn't reasonably have a choice.
Example 1: Cop walks up to person on the street and offers him cocaine. Person accepts, that's not entrapment since the person could have declined.
Example 2: Cop walks up to person on the street and forces that person to snort cocaine at gunpoint. Entrapment, since no reasonable person could have declined.
The US government already requires that ISPs retain logs of leased IP addresses for at least ninety days. As lnhh indicates, there is a bill making its way through Congress now that extends this to something like 18 months iirc.
