Here is my list of possible defense categories. If I forgot something, or if you have better ideas, please comment.
- Those who have been using eDonkey but did not intend to download any copyrighted product or any pornography (as indicated by the innocent file name listed above the title of the allegedly infringed movie on p.2 of the ransom letter). I believe that your defense should claim (and you will need evidence to substantiate this claim) that one can find plenty of legally free files on eDonkey and you were looking for one of such files, as the file name listed in the letter indicates. In order to entrap you, someone renamed one of IO Group’s products to make the file name look like the name of the free file that you were searching for. Under your circumstances, Sperlein’s conspiracy argument sounds ridiculous. Note, however, that he may claim that it was a negligent or accidental distribution and you are still liable under 17 U.S.C. § 504 and 505. I believe that if you were entrapped, you should not be liable, but only an experience copyright attorney can give you a credible opinion on this matter.
- Those who have been using eDonkey and were looking for freely distributed (i.e. not copyrighted) pornography (as indicated by the file name listed above the title of the allegedly infringed movie on p.2 of the ransom letter). All the arguments for group 2 above hold for you, but I hope that you understand that the defendants in group 2 would prefer not to be associated with pornography. In addition, your attorney will need to explain how you were going to distinguish free pornography from copyrighted one.
- Those who were looking for some particular copyrighted non-pornography product. The troll will probably do his best to claim civil conspiracy to infringe copyright (in general). Note how he claims that “the eDonkey2000 Network is used almost exclusively to locate, reproduce, and distribute infringing content” (Docket 41, p.18). Your attorney will have to work on this issue.
- Those who were looking for some particular copyrighted pornography product. I don’t really know whether it will make a difference whether it was IO Group’s product or some other copyrighted porno, but, even though I hate the idea of feeding trolls, settling is probably your best option, unless you can find an attorney who will agree to defend you pro bona. I don’t hope. However that you will find such attorney.
- Those whose ransom letters show the file name that cannot be interpreted (for example, -æ±Ÿè•™ é…’å€™çš„å¿ƒè².rar). In your place, I would consult a cryptographer to see whether this unreadable sequence actually means something, and after this consultation see whether you fall into one of the categories listed above.
Please limit the subjects of comments in this thread only to discussing the categories and attorneys that could work with those. I suggest using other posts for other topics. If you’d like to see a post with a new topic, please send me an e-mail with the text that you suggest for this topic.
A reminder: try to limit your communications with Mr. Sperlein to an absolutely necessary minimum, and avoid disclosing your defense to him. He will do his best to turn your words upside down and use them against you.