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GAMABrief: So, You Got a Subpoena

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Over the last several years, the number of lawsuits filed against anonymous Internet users has exploded. In these cases, alleged victims of online defamation and copyright infringement attempt to strip away Internet users’ anonymity by seeking a court subpoena. Most notably, copyright trolls have filed lawsuits for infringement, naming thousands of anonymous Internet users as defendants. These plaintiffs, often large music recording or movie production companies, will issue a subpoena to a user's Internet Service Provider (ISP) to compel the ISP to reveal the identity of that user.

If you have received a letter from your ISP notifying you of a pending subpoena seeking your offline identity, or if you are an ISP that received a subpoena seeking information on one of your customers, here’s what you need to know.

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GAMABrief: So, You Got a Subpoena

  1. 1. GAMABrief: So, You Got a Subpoena: An FAQ for Internet Users & ISPs Over the last several years, the number of lawsuits filed against anonymous Internet users has exploded. In these cases, alleged victims of online defamation and copyright infringement attempt to strip away Internet users’ anonymity by seeking a court subpoena. Most notably, copyright trolls have filed lawsuits for infringement, naming thousands of anonymous Internet users as defendants. These plaintiffs, often large music recording or movie production companies, will issue a subpoena to a user's Internet Service Provider (ISP) to compel the ISP to reveal the identity of that user. If you have received a letter from your ISP notifying you of a pending subpoena seeking your offline identity, or if you are an ISP that received a subpoena seeking information on one of your customers, here’s what you need to know: Info  For  File  Sharers,  Bloggers  &  Other  Internet  Users What's  a  subpoena  and  why  did  I  receive  it? A subpoena is an official document from a court requiring you to produce documents or records or to attend a trial or deposition as a witness. If you have recently downloaded files via a file sharing client or protocol (such as BitTorrent), or if you have recently posted a comment on a public message board or blog, a plaintiff may be claiming that you have either infringed their copyright or defamed them. Generally, when you engage in online activity, the only identifier tying you to that activity is either an Internet Protocol address (“IP address”) or a username. A plaintiff may, therefore, have sent a subpoena to the ISP that assigned you your IP Address in order to discover your real name and address. Why  am  I  referred  to  as  “Doe”? When a plaintiff brings a lawsuit against an anonymous defendant, the court will assign the pseudonym of “Doe” or “John Doe” until the defendant’s true identity is discovered. When more than one anonymous defendant is named in the lawsuit, the plaintiff will often refer to the defendants by number, i.e., Doe 1, Doe 2, Doe 3, etc. If  I  ignore  it,  will  it  just  go  away? NO! Ignoring a subpoena is a surefire way to sacrifice your legal rights or end up in some big trouble. If your ISP informs you that it has received a subpoena seeking your information, you may be able to fight the subpoena in court. If you do nothing, however, the ISP will likely fulfill the terms of the subpoena and provide the plaintiff with your name and address. Once the plaintiff has this information, you will be served with a complaint and, subsequently, have to defend yourself against the lawsuit in the courtroom. If you received a subpoena directly, ignoring it can be a basis for a court to hold you in contempt. Contempt of court can be accompanied by fines and even jail time. Can  I  fight  a  subpoena? Yes. When a plaintiff tries to discover your identity by sending a subpoena to your ISP, they may violate your First Amendment right to speak anonymously. In 1960, the Supreme Court decided Talley v. California, in which it was found that part of the right to free speech and expression is the right to speak anonymously. Courts have subsequently found that this right also applies to expressive activities on the Internet. A  GAMA  White  Paper  produced  by  Brandon  Wiebe                                                                                          ©  2013.  Gagnier  Margossian  LLP.    All  rights  reserved.  
  2. 2. Relying on the First Amendment, an attorney can help you prepare a motion to prohibit the plaintiff from discovering your identity (called a “motion to quash”). You can also attack a subpoena if it is unlikely to lead to relevant evidence in the case or if it is too burdensome. An attorney can help you research these legal arguments and present them persuasively before the court. Is  copyright  infringement  really  a  big  deal? Yes. If you are found liable for copyright infringement, the plaintiff may be entitled to statutory damages equal to as much as $150,000 per infringement. I  also  received  a  seHlement  leHer  —  do  I  really  need  to  pay? Not necessarily. You are not obligated to settle a claim brought against you by a copyright troll or other plaintiff. After discovering an online file sharer’s identity, many copyright trolls will send settlement demand letters, asking that a defendant pay hundreds or thousands of dollars to settle the case. Whether you want to settle a case is ultimately your decision, but you are not obligated to settle a case and have the right to have your case heard by a jury. Info  for  Online  OrganizaKons  &  Service  Providers Why  did  I  receive  a  subpoena  seeking  informaKon  about  one  of  my  customers? Since many providers of online services keep a database of customer names, addresses, usernames and IP addresses, a plaintiff in a lawsuit may try to get you to unmask the identity of one of your customers in order to serve him or her with a complaint. The plaintiff may only know the customer by his or her IP address or username, and may want you to disclose the customer’s real name and address. Should  I  contact  the  customer? Maybe. Notifying a customer of the subpoena will give that customer a chance to fight the subpoena. While this may simply be a smart move in order to maintain consumer trust, you might also be legally obligated to provide customer notification. The first thing to check is your privacy policy. If your privacy policy states that you will notify customers of subpoenas seeking their personal information, you must provide such notification in order to comply with fair business practice laws and Federal Trade Commission regulations. There are other laws that may also compel you to notify your customers. If the case is based on alleged copyright infringement, you may be required to notify your customer in order to maintain safe harbor protection under the Digital Millennium Copyright Act. If you are also a provider of cable television services, you will likely be required to notify a customer under the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 551(c)(2). Can  I  fight  the  subpoena? An attorney can help you determine whether you should fight a subpoena seeking information about one of your customers. In some circumstances, the information sought by the subpoena may be protected as a trade secret or other legal privileges. If  you  have  received  a  subpoena  seeking  either  your  idenKty  or  the  idenKty  of  a  customer,   contact  an  aHorney  at  Gagnier  Margossian  LLP  to  explore  your  opKons. Internet Intellectual Property Privacy Social Media Technology The Good Stuff #nerdlawyers Los Angeles Sacramento T: 415.766.4591 F: 909.972.1639 E: consult@gamallp.com gamallp.com @gamallp San Francisco

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