200,000 BitTorrent Users Sued In The United States
torrentfreak.com
torrentfreak.com
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?"
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.
> 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.
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.
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.
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.
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.
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.
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.
>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...
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".
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.
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?
[1] http://en.wikipedia.org/wiki/Legal_burden_of_proof#Preponder...
http://torrentfreak.com/are-you-guilty-if-pirates-use-your-i...
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.
Now, modify the number to account for average household size.
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.
Looking at the spreadsheet (https://docs.google.com/leaf?id=0B8oEqWOAwM3SM2Y1Y2NmNWMtY2M...) It seems that it is mostly people who download porn. And Hurt Locker, Cry, and Expendables
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.
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.
Is there some automated solution to keep track of this?
Thanks.
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.
On a sidenote, one way to get a new IP is to go into the router control panel and change that MAC address.
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.