Refund Unlikely for Sued File Sharers

For the hundreds of accused file sharers who already have been sued for allegedly trading pirated songs online, Friday’s ruling that their Internet service providers shouldn’t have been forced to hand over their names won’t bring a windfall.

It was just more lousy luck. And for San Francisco defendant Marvin Hooker, that just figures.

If the U.S. Court of Appeals for the District of Columbia had ruled before the record companies got around to suing him, his Internet provider might have shielded his identity. That would have forced the companies to pursue the more cumbersome option of suing him anonymously, then seeking his name and address.

“That would have been great,” said Hooker, a bank employee who said he couldn’t afford the $4,000 settlement offer from the Recording Industry Assn. of America.

Defense attorneys said that because the RIAA already had obtained the names of their clients, it almost certainly was too late to stop record companies from exacting their pound of flesh.

“Nobody’s going to get any refunds,” said Joseph Singleton, a Beverly Hills lawyer who represents half a dozen clients who have paid money in settlements with the record labels or are negotiating deals.

In a criminal case, charges can be dismissed if evidence is seized with a search warrant that shouldn’t have been authorized. But there is no such “exclusionary rule” for civil lawsuits.

“There’s no recourse,” said Sacramento civil attorney Dan Ballard. Even customers of Verizon Communications Inc., which won Friday’s court case, apparently are out of luck, since a lower court already had forced Verizon to release the names.

Several accused file sharers said that was rotten. “If they obtained something they should not have, I feel we should be reimbursed,” said one from Northern California who paid several thousand dollars to settle a lawsuit filed against him after the record labels got his name and address from his ISP. He asked not to be identified because, as part of the settlement, he agreed not to discuss his case.

New York photographer Tim Davis, who paid a $7,000 settlement this month, said he hoped the ruling would provide some grounds for getting his money back.

“If there was ever going to be a civil suit saying our privacy has been violated,” he said, “you can imagine that this ruling would really help.”

Only a few of the hundreds of people caught up in the industry’s dragnet will benefit: those who filed legal papers to stop their ISPs from identifying them.

Ballard, who represents a Verizon subscriber known from her screen name as “nycfashiongirl,” said he expected the federal judge hearing the case in Washington to deny the RIAA’s attempt to enforce its subpoena. “Our case, as a practical matter, is over.”

Another potential winner is the North Carolina college student who asked a federal court there to block a subpoena asking his university to reveal his identity. American Civil Liberties Union staff attorney Aden Fine, who is handling the case, said he hoped the North Carolina judge would be influenced by the appeals court ruling, even though he isn’t required to follow it.

The biggest beneficiaries are the millions of file sharers who haven’t been identified or sued, said Wendy Seltzer, a staff attorney for the Electronic Frontier Foundation in San Francisco.

“This means a judge will be involved in any process in which their names would be disclosed,” she said. “If they believe the suit is improper, or that the ISPs turned over the wrong name, they will have a chance to challenge it.”

At least one defendant who ponied up money to the record labels is resigned to her fate.

“I can’t imagine going through the legal finagling to try and get the money back,” said Nancy Davis, a school bus driver in Sunol, Calif., who paid $3,000 for her teenage daughter’s use of the Kazaa file-sharing network.

“I do believe we broke the copyright law,” she said. “It’s a good lesson learned. It opened our eyes.”