Procedural and Evidentiary Considerations in Music File Sharing Direct Copyright Infringement Suits.
Consider:
1) Procedural Defenses Include (Verizon and its Progeny):
a) How did plaintiff learn of your client? Did your client receive a letter from his/her/its ISP stating that plaintiff was requesting his/her/its IP address? There is case law suggesting that your client may have been denied procedural due process if certain steps were not taken by the ISP and plaintiff respecting your client’s information.
b) Also, there are Courts which have dismissed suits simply because plaintiffs have improperly joined too many defendants (e.g. Does 1-50).
c) Has plaintiff attached the registered copyrights to the complaint? Registration is a prerequisite to suit … the attachment of the registered copyright may be jurisdictional.
d) Does plaintiff own or control the actual works your client is alleged to have infringed?
2) Evidentiary Defenses Include:
a) Does plaintiff only have a list of file names, or has plaintiff downloaded complete files? How do we know whether the file named “michelle.mp3” is really the copyrighted tune “Michelle” by Lennon/McCartney?
b) Did your client use a Pentium or AMD chip? AMD chips don’t have identifiers.
c) How can plaintiff prove your client was at a particular IP address? Does your client use a modem, cable, adsl, T1, T3, etc. to connect?