John Doe Subpoenas: BitTorrent Lawsuit Defense
Copyright owners have the authority to pursue legal remedies in the federal courts for copyright infringement. To perfect the copyright holder’s rights, the copyright owner must file a lawsuit and identify the person or entity it claims violated the copyright. This procedure is easy if the individual is standing on a street corner selling bootlegged copies of movies. The task becomes much more onerous when the person who allegedly violated the U.S. Copyright law is anonymously using a personal computer, tablet, or Smartphone.
Plaintiffs who file copyright infringement lawsuits claiming damages for unlawful dissemination of copyright protected material on the Internet seldom know who the identity of the offender. They can decipher the internet service provider (ISP) the alleged perpetrator uses and then determine the particular internet protocol (IP) address used to connect to the web. An ISP gives their subscribers IP addresses. Thus, when a person connects to the web, their IP address can be used to track where they go and what they see on the web. Therefore, the only information the plaintiff has about the potential defendant is a series of numbers separated by periods. Consequently, the plaintiff must file a lawsuit known as a “John Doe” lawsuit. The plaintiff may also include your ISP in the lawsuit.
In the context of a copyright infringement lawsuit, a John Doe lawsuit can identify the IP address only. Therefore, they cannot serve the defendant with notice of that lawsuit. Consequently, the plaintiff’s lawyers ask the court to issue a “John Doe” subpoena. The Federal Rules of Civil Procedure, specifically Rule 45, permits a court to issue a subpoena for information in a lawsuit if the plaintiff makes the requisite showing. Then, the recipient of the subpoena has a limited time to reply. In the case of a John Doe lawsuit, the subpoena will ask the ISP to identify the individual only known to this point as a series of seemingly random numbers. The ISP must comply with the subpoena by providing your name, address, and possibly your phone number.
Your ISP will not just distribute the information without first informing you of the situation. Typically, the letter informs the subscriber that their IP address was located in a BitTorrent swarm or group of computers uploading and downloading pieces of the same file and that the ISP has an obligation to reply to the subpoena. The ISP will give their customer a set time to respond to the letter. This gives the letter recipient an opportunity to seek counsel and file a responsive pleading to the lawsuit if they so chose.
One option for you, if you received a letter from your ISP regarding a subpoena for your information is to move to quash the subpoena. You can move to quash the subpoena if:
- the time to reply is unreasonable,
- the subpoena violates geographical limitations,
- subjects the person to disclosing a privileged matter, or
- subjects the person to an undue burden.
A person might also consider filing a motion for a protective order to prevent your ISP from identifying you. This tactic might work if the individual is accused of downloading an adult film. But, it can also work if, after the ISP disclosed contact information, the plaintiff’s attorneys ruthlessly pursued settlement demands.
There are legitimate defenses to BitTorrent lawsuits. Simply because you received notice that your ISP received a subpoena for your information does not mean that you are automatically responsible for copyright infringement. IP addresses can be accessed by people who are not subscribers to the ISP. All the plaintiff knows is that your IP address is connected to BitTorrent. Situations have occurred that created a false positive and identified the wrong person and only after an investigation was it learned that a person hacked in IP address.